Do I have to give sick pay to my employee who has had elective or cosmetic surgery in my Day Nursery, Pre-school or Club?

Let’s initially discuss what elective and cosmetic surgery includes. First of which is elective, this is defined as any surgery that is scheduled in advance, for example where there is no emergency and can include surgery that does improve someone’s health and appearance for example where someone is suffering depression due to a birth mark or where they have a gastric band fitted for weight loss etc.

Remember to think broadly about health and think psychological health as well as physical health.

By contrast, cosmetic surgery is often used to describe the surgery which is again planned but doesn’t need to be undertaken on any health grounds, i.e. nose jobs, tummy tucks, boob jobs. There are also have cosmetic procedures such as botox, lip fillers etc that aren’t classed as surgery but can result in an employee being absent from work.

What happens when an employee tells you they are planning surgery?

Discovering that your employee will be absent from work as they plan to have elective surgery means that you should discuss with the employee what they will be paid for their absence.

They could request holiday or unpaid leave for the procedure. Whether you can authorise this will depend on the impact on your Day Nursery, Pre-school or Club. Holiday requests can be refused if you already have staff off, as can requests for unpaid time off.

So what should your employee do if they wish to have elective or cosmetic surgery that will impact their employment?

In an ideal world the employee will meet with their Line Manager to discuss their plans. Don’t be surprised if this doesn’t happen. In society we can be judgemental towards others who seek to improve their appearance (in their view) and they may feel uncomfortable sharing their plans with their employer for fear of judgement. In strict terms the employee is under no obligation to advise you as to what they intend to do with their annual leave.

Where the employee takes annual leave that is authorised the expectation is that they will return on the date that they said they would, if they are unfit to resume work we would advise you treat as any employee who is unable to return from annual leave due to sickness absence.

What about the recovery?

Whilst the procedure may have been planned, frequently the recovery will be unplanned and in most cases the recovery period means that the employee is genuninely unfit to resume work.

Again, you’d like to think that the employee will discuss this with you and whether they would be fit if their role was adjusted or modified during their recovery. The employer doesn’t have to accomodate a request for adjusted or modified duties if it doesn’t work for the business.

In terms of whether the recovery period is paid or unpaid sickness absence will depend on your Absence policy.

Statutory Sick Pay (SSP)

If you pay SSP you will be familiar that the first 3 days of the absence are waiting days and only if they are off for 4 or more days does the employee start to accrue SSP from day 4. The employee can self certify their absence for 7 calendar days so will not need a Statement of Fitness for Work till day 8. If the employee has had surgery overseas they may struggle to obtain an overseas medical certificate for their continued absence.

Contractual or Company Sick Pay CSP

If they are entitled to CSP they they will be due to be paid for their sick leave unless you have a clause in the contract which gives you the right to withhold sick pay. Be careful if you have this, and we certainly wouldn’t recommend one. The reason why someone might be seeking elective surgery may be covered under the Equality Act 2010. Severe disfigurement is one that comes to mind.

The importance of Confidentiality

Remember, health information is deemed as sensitive employee data under Data Protection Regulations.

Don’t share the nature of the employee’s absence with their colleagues. They have the right to have their health matters treated with strict confidentiality.

If you would like more information on elective procedures, our Elective Medical Procedure Policy is available here: https://redwing-solutions.co.uk/product/elective-medical-procedures-policy/

If we can be of any assistance with any aspect of HR in your Day Nursery, Pre-school or Out of School do give us a call on 01527 909436.