An employee will be entitled to statutory sick pay (SSP) if they are incapable of working, irrespective of the reason for the incapacity, provided they follow the usual notification requirements. To qualify for SSP, the employee must be sick for at least four or more consecutive days and must meet the lower earnings threshold for national insurance contributions. As such, SSP will usually be payable in accordance with the normal SSP rules.

Whether the employee is entitled to contractual sick pay ¨C that is, pay over and above SSP ¨C will depend entirely on the operation of the employer¡¯s sick-pay scheme, as will the amount and duration of any sick pay. If the employer¡¯s policy states that sick pay will be paid for any absence owing to ill health, it is likely that the employee will be entitled to sick pay.

Some employers, however, take the view that elective surgery, such as cosmetic surgery, is a lifestyle choice and seek to exclude payment of contractual sick pay or retain discretion to decide case by case whether to provide sick pay for such absences. Similarly, employers¡¯ holiday policies may require employees to use their holiday entitlement, lieu days or arrange unpaid leave for any absences for elective surgery. Any approach that treats absences arising from elective surgery differently from other absences may give rise to the risk of claims.

To minimise any risks arising, an employer should consider taking some or all of the following steps:

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? Reviewing and, if appropriate, amending its current sickness absence policy.

? Drafting a policy specifically to cover elective procedures to ensure that staff understand the employer¡¯s position, if it does not already have such a policy in place.

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? Ensure that any new or revised policy is effectively communicated to all employees.

? Adopt a sensitive and pragmatic approach so that employees feel able to approach managers to discuss their plans before any treatment. This may allow the employer to agree with the employee mutually acceptable arrangements for time off for the surgery and for any recuperation from treatment, rather than the employee simply taking sick leave without any prior warning.

? If sick pay is not payable for elective or cosmetic surgery or if the individual is required to use his or her holiday entitlement, lieu days or arrange unpaid leave for any such absence, the employer should state this clearly and explain to the employee what is meant by ¡°elective¡± and ¡°cosmetic¡± surgery.

? If sick pay is not payable, the employer should state that the individual will still be entitled to SSP (subject to the usual SSP requirements).

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? The employer should be consistent and ensure that any relevant policies are implemented fairly and transparently.

? It should also ensure that any details of the surgery are kept confidential, particularly as such information will probably be considered sensitive personal data for the purposes of the Data Protection Act 1998.

On a separate but very important topic, employers should remember that if an employee is undergoing gender reassignment, they are afforded specific protection and cannot be treated any less favourably than someone who is absent for some other reason. Employers should also be mindful that they have a duty to ensure that an employee in these circumstances does not suffer harassment once they return to work.