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Striving for perfection: does cosmetic surgery constitute as sick leave?

Kevin Charles

We're in the age of perfection; the ‘selfie’ generation where looking good means feeling good. Whether it’s a boob or nose job, lip fillers or complete facelift, more people are turning to elective surgery and cosmetic procedures to improve or enhance their appearance. But what happens when this strive for perfection crosses over into work time? Kevin Charles, Director at Crossland Employment Solicitors, explains the rules around time off for such cosmetic procedures

Your employee has asked for time off for a boob job under their sick leave allowance – what  do you do? It means you'll be a team member down and a possible loss in productivity so should such elective surgery come out of their annual leave or even be treated as unpaid time off, or does it constitute as sick leave? The answer depends on the type of surgery/procedure and the reason for it.

The first port of call is statute. Under the Equality Act 2010, employees with a ‘disability’ must not be treated less favourably and an employer has a duty to make reasonable adjustments where an employee’s ‘disability’ places him or her at a disadvantage.

A ‘reasonable adjustment’ is likely to include allowing time off (without having to use up their annual leave) for reconstructive surgery such as following breast cancer (which is a ‘disability’) or to have a gastric band fitted to lose weight. The latter would only apply if their size significantly affected their ability to carry out normal day-to-day activities and therefore classed them as ‘disabled,' under The Equality Act. However, employers are not obliged to give disabled staff more paid sick leave.

The Equality Act also provides protection for employees undergoing, proposing to undergo or have undergone transgender reassignment. Such employees should not be discriminated against and they should be allowed to be absent from work because of gender reassignment. Under The Equality Act Code of Practice on Employment, employers should discuss how much time off transsexual staff need for the gender reassignment process and try to accommodate those needs in accordance with their policies and procedures. This would include, for example,  allowing a male employee time off under the sickness absence policy, for cosmetic surgery or procedures like lift brow, lip fillers, breast enhancement etc. without requiring him to use annual leave. They would also be entitled to any company sick pay, the same as other employees.

But what about employees who are not disabled or undergoing transgender reassignment and cannot rely on any statutory provisions for time off? The next port of call is the contract of employment, which, generally speaking, would not allow time off for medical or dental appointments, including elective surgery. In these circumstances an employee could be required to take annual leave rather than sick leave or reach an arrangement with their employer to take time off as unpaid.

However, where an employee requires time off for medical rather than purely cosmetic reasons, such as a breast reduction to ease back problems and medical evidence is provided, it would be reasonable to allow time off as sick leave, consistent with other employees taking sick leave.
It may be more problematic when an employee, for example, claims to need time off for a nose job because they suffer from low self-esteem. They may consider the surgery as a means to boost confidence and therefore, their performance at work. If you're faced with this situation then look carefully at the facts of each case and any supporting evidence and ensure that a consistent approach is taken otherwise, this could give rise to constructive dismissal claims.

Then there are the staff who simply want to take a good ‘selfie’ and have no good pressing or medical reason for time off. It's reasonable to ask the employee to use annual leave in such cases. However, if the person is signed off sick by a GP after the procedure and the contract provides for the payment of statutory sick pay then it would be difficult to justify not paying this regardless of whether the ‘sickness’ is self-induced or not.
It's evident from the media that cosmetic surgery remains popular and, with it, employers will see an increase in requests for time off. Develop a policy, with clear guidelines for HR professionals and managers. This should set out how to handle requests so all staff are treated fairly and consistently, and no one falls foul of the law. 

By Kevin Charles, Director at employment law specialist, Crossland Employment Solicitors. http://www.crosslandsolicitors.com/

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