Elspeth Buck

Should an employee get sick leave for elective or cosmetic surgery?

A member of staff is having elective surgery to have a gastric band fitted. They are doing this for their long term health as they have struggled with their weight for many years. The member of staff has asked me if they are entitled to paid sick time off, or should they take this as annual or unpaid leave?

This got me thinking about elective and cosmetic surgery. In 2012 the British Association of Aesthetic Plastic Surgeons (BAAPS) announced it had seen a rise of 6% in cosmetic procedures undertaken in the UK for 2011, this equates to around 43,000 plastic surgery procedures. With more and more people having cosmetic surgery for all sorts of different reasons, some for health reasons and others through personal choice, how do practices avoid discrimination and apply a consistent approach?

Many practices initial reaction may be reluctance to pay sick pay and tell employees that they must use annual or unpaid leave. However cosmetic surgery is not always for aesthetic reasons, there are individuals who suffer with depression due to physical issues or require cosmetic surgery following a serious road traffic accident or breast cancer operation.

Statutory rights for elective surgery

There is no statutory right to time off for a person who elects to have surgery however they are more than likely to be unfit for work for a period of time following the surgery.

For the purpose of statutory sick pay, (SSP) it is irrelevant that the employee’s ill health may have been self –induced. Employees are entitled to SSP providing they are incapable of doing work that they would reasonably be expected to do under their contract of employment, and have complied with the statutory SSP requirements. It is highly likely the effects of either elective or cosmetic surgery will leave the employee unable to work for a period of time it is likely they will be entitled to SSP.

Contractual sick pay entitlement for elective surgery

The employee may or may not be entitled to contractual sick pay. Generally the right to contractual sick pay will be in the employee’s contract of employment, or within the practice sickness absence policy. Whether or not contractual sick pay is paid over and above SSP will depend on the practice sick pay scheme.

If there is nothing in the contract of employment on this subject and it’s not covered in any of the practice policies and procedure then the practice may need to take a decision using discretion based on each employee’s request. It is very important to ensure when using discretion that you apply a consistent approach and record the outcomes to ensure all requests are dealt with in the same manner.

As both cosmetic and elective surgery have risen in popularity, and in all likelihood will continue to do so. As there is little stature or case law dealing with the topic, you may wish to consider devising your own policy to ensure consistency of treatment and avoid discrimination.

Please note the above guidance is of a general nature. It is important that practices ensure policy guidelines and contractual obligations are followed.

In addition to the above FPM members can obtain further information via the First Practice Management website. Alternatively members can also email specific questions about employment issues to advice@firstpracticemanagement.co.uk where your question will be treated in confidence and will normally be answered (by email) within 2 working days of submission.

Information from ACAS, Personnel Today and the HSE’s website has been used within this article.

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Comments

Susanna 28/12/2016

Hi I wanted to ask about the definition of 'elective' used in this article and the statement about 'rising in popularity'. My understanding is elective means anything that it is not urgent/emergency but it still required for physical health reasons e.g. a hip replacement is elective surgery. Are you still suggesting that a hip replacement for example, be treated in the same way as cosmetic surgery (which may have psychological benefits) in terms of employment law? Or are you using the term 'elective' in a different sense and relating to where the patient may initiate some form of treatment and not a medical professional? Thank you

Sam Cook, HR Advisor at FPM 26/02/2015

Hi Sarah, thanks for commenting. FPM is a subscription service for GP Practice Managers and Partner to e-mail but I can give you a few tips: Elective surgery can be a contentious issue, particularly in regards to pay and sickness absence management it is worth considering what the sick pay/management policies state in regards to this. A recent tribunal outcome has stated that obesity can sometimes meet the disability criteria under the Equality Act and therefore reasonable adjustments should be considered by employers (in extreme examples). I would advise speaking with the line management in regards to this. Alternatively ACAs or Citizens Advice can support employees on employment matters. Sam Cook - HR Adviser for FPM

Sarah Bennett 26/02/2015

,My sister had a gastric band inserted in January of this year, she paid at a private clinic, she has had post op complications, she has used 2 weeks annual leave and 2 weeks unpaid leave she remains unfit to work as a health care asisstant on a busy stroke unit - is she entitled to sick pay if she now goes off sick ?


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