SICK PAY - 19.11.2019

Do you have to pay sick pay for elective surgery?

What is elective surgery?

Elective surgery is surgery that’s scheduled in advance because it doesn’t involve a medical emergency. It includes surgery that’s carried out at the patient’s election, usually on the advice of their GP or consultant, for medical reasons to improve their quality of life, e.g. joint replacement, scoliosis surgery, etc. However, it also includes optional cosmetic surgeries performed purely for non-medical reasons and which are usually aimed at improving the patient’s appearance, e.g. a facelift, breast augmentation, rhinoplasty, liposuction, etc. There are also cases which fall into a grey area, such as vasectomies and laser eye surgery. As these aren’t medically necessary, they’re usually regarded as cosmetic procedures.

Pro advice. An employee’s reasons for having what at first appears to be cosmetic surgery may not necessarily be down to vanity but may be to preserve their physical/mental health, e.g. gastric band surgery where the employee is depressed about being obese. There may also be both medical and cosmetic reasons for surgery.

Statutory sick pay

The statutory sick pay (SSP) provisions rely on the employee being incapable of working and they make no distinction between absences caused by genuine illness or emergency surgery and those caused by elective surgery, as there’s no statutory definition of sickness. Even if the employee is not incapable of working, they will be deemed so for SSP purposes if they have a “disablement” and a medical practitioner advises them to refrain from work for convalescent reasons. Thus, subject to meeting the SSP qualifying conditions and complying with your absence notification requirements, an employee will be able to receive SSP during their sickness absence if they’re incapable (or deemed incapable) of work, even where the surgery is cosmetic. You can still require them to produce a statement of fitness for work (fit note) signed by their GP or hospital doctor for any absence that goes over seven days (they can self-certify for the first week).

Pro advice. The employee also has the option of taking time off for elective surgery as annual leave if they want to receive full pay, especially as no SSP is due for the first three waiting days.

Contractual sick pay

If you offer a contractual enhanced sick pay scheme, this may determine the terms on which it’s offered. Your sick pay scheme may exclude elective cosmetic surgery. However, if it contains a general right to sick pay without defining the type of sickness, it’s likely you’ll have to pay.

Pro advice. Check the wording of your contractual sick pay clause to see what, if anything, it excludes. If necessary, consider amending it for new employment contracts to exclude elective cosmetic surgery from qualifying for contractual sick pay, but to include elective surgery which is on medical advice, i.e. where it has been confirmed by a medical practitioner to be necessary or recommended to improve the employee’s quality of life or to preserve their physical or mental health (see Follow up ).

Alternatively, if you pay sick pay over and above SSP purely on a discretionary basis (see Follow up ), you’ll need to ensure your discretion is exercised fairly and not irrationally or arbitrarily.

Pro advice. When exercising your discretion, be consistent between cases and be careful to avoid unlawful sex or disability discrimination.

Elective surgery clause

Sick pay clause