Elective Surgery - In the Spotlight

Published: 7th November 2008

Elective surgery is becoming relatively common. Whereas once it was unusual to find someone who had opted for elective surgery, developments such as laser eye surgery, dental implant surgery as well as more cheaply available cosmetic surgery mean its probably unusual to find a workplace unaffected by this issue.

Does your sickness absence policy cover it?

Most sickness absence policies are not designed to cope with the problem presented by elective surgery. If there is not a specific policy in place line managers can find themselves having to take tricky decisions in an ad hoc or piecemeal fashion.

An employee will always be entitled to receive statutory sick pay if they are not capable of working, regardless of the reason for their incapacity - that is whether they have "elected" to be incapacitated or not.

Contractual sick pay is another matter, and it is in respect of this element of pay that a properly drawn up policy could help. For example if the policy states that an employee will be paid for any absence that is due to ill health, and does not deal specifically with "elective" situations, it is likely that the position will be the same as that in relation to statutory sick pay, and an employee will be entitled to contractual sick pay for the duration of any absence. A policy can make the distinctions clear.

Timing can also throw up difficult issues. An employee does not usually choose the times when they are sick. With elective surgery it is different and it may be that an employer would accept an elective absence at one time of the year, but not at another, much busier time. Again, without a clear policy, making decisions can be difficult in practice. It can also be difficult to assess what the likelihood is of something "going wrong", meaning that the recovery time and the absence from work is considerably longer than anticipated at the outset. Not surprisingly some line managers view an extended absence after elective surgery differently from an absence after "ordinary" surgery. Without a clear policy it may be wrong to treat these two situations differently.

The main difficulties for an employer without a policy often come from ad hoc and inconsistent decisions taken by line managers.

Discrimination Issues

If an employee is depressed or suffering from a psychological illness as a result of what they view as a physical imperfection then they may take sickness absence due to that illness and use some of the time to have elective surgery. Another extremely difficult area could be where elective surgery is sought in respect of something that could qualify as a physical disability. In these sort of situations you need to be aware of the potential for a disability discrimination claim. Again the clearer your policy is, the less likely you are to run into difficulties that cannot be managed effectively. Also it is important to be aware that statistically the majority of cosmetic surgeries are still carried out on women, it has been suggested that almost 90% of cosmetic surgery is carried out on women.

Those employers that already have specific policies for elective surgery in place take different views on the subject. Some take a robust approach of saying its your choice, so you do not get contractual sick pay when you are off. Other employers retain the discretion whether to give contractual sick pay. It is not unknown for employers to say that holiday entitlement (or a proportion of holiday entitlement) or lieu time must be used up in these situations, or that unpaid leave should be taken. Treating this type of absence differently from other sickness absence can be fraught with problems, one example of which might be an indirect sex discrimination claim. A properly worded policy can minimise those risks, for example by distinguishing between surgery for medical or psychological reasons, as certified by a GP, and surgery that does not fall into that category.

Do remember that these general observations do not apply to those undergoing gender reassignment who have very specific protection, and cannot be treated less favourably than someone absent for some other reason.

Have a policy in place

As ever the least risky situation is to have a properly drafted policy in place so that staff are aware of exactly how situations will be managed. Any policy should try and encourage discussion with management first, as there is a greater chance of reaching a mutually agreeable arrangement for time off and recovery. If you do not have a policy and an employee takes sick leave and tells you afterwards, there may be little you can do about it.

If you are going to ask staff to use holidays or time in lieu, you need to explain carefully how this will work in practice and you also need to define clearly what elective surgery actually means.

There are confidentiality issues as well, both in relation to the initial meeting to discuss the situation, where an employee may not want to tell their immediate line manager personal information, and ensuring that all people involved maintain confidentiality. People will always be interested in why someone is absent from work and a policy is one way of involving the person in how much information they want to be given to colleagues. Learning that others have been discussing behind your back your new nose or your tummy tuck could be fertile ground for claiming a breach of trust and confidence leading to constructive dismissal.

Difficult situations that we have recently dealt with have all involved workplaces without a specific policy in relation to this issue. If your sickness absence policy is due for review it would be opportune to get in touch with your usual contact in the employment law team for assistance with drafting a policy that suits your organisation's needs. Otherwise you are likely to be leaving it to chance and individual management decisions, which always present the possibility of potential claims.

If you would like to discuss any of the above points please speak to your usual contact in the Mace & Jones Employment and HR Team.