Our employee has asked for time off from work to undergo cosmetic surgery. Does an absence of this nature qualify an employee for statutory sick pay under the Sick Leave Act 2022?

Intro

Cosmetic surgery and procedures have seen a rise in uptake in recent years. Therefore, it is not surprising that this rise in uptake is coming to the attention of employers in circumstances where employees are seeking time off from work to undergo cosmetic procedures and employers are questioning whether, in light of the Sick Leave Act 2022 (“the Sick Leave Act”), employees are entitled to pay in respect of time off while undergoing or recovering from a cosmetic procedure.

The Sick Leave Act 2022

The Sick Leave Act provides, at Section 5(1) that, “Subject to this Act, an employee shall, in respect of a day on which he or she would ordinarily work but is incapable of doing so due to illness or injury (in this Act referred to as a “statutory sick leave day”), be entitled to statutory sick leave.”

To be entitled to statutory sick pay, which, as of 1st January 2024, will be up to five days per calendar year, an employee must have completed 13 weeks continuous service with their employer and have provided their employer with a medical certificate signed by a registered medical practitioner stating that they are unable to work.

The terms “illness” and “injury” are not defined within the Sick Leave Act and, in the absence of case law to come before the Workplace Relations Commission on the topic, it is somewhat open to interpretation as to whether employees undergoing cosmetic surgeries are entitled to statutory sick pay. Arguably, once the employee has met the minimum service requirement provided for under the Sick Leave Act and has produced a medical certificate signed by a registered medical practitioner stating that they are unable to work, it would be difficult for an employer to justify a refusal to pay statutory sick pay to an employee solely on the basis that the reason for their absence was to undergo a cosmetic surgery or procedure.

Indeed, for data protection purposes, employers are not necessarily entitled to know the medical reason for an employee’s absence. Therefore, where an employer receives a certificate from a registered medical practitioner stating that an employee is unable to work, it can be difficult for an employer to query that, even where the employer suspects that the reason for the absence may be related to an elective cosmetic procedure.

Risk of Discrimination

Employers proposing to take a blanket approach to excluding cosmetic procedures from the ambit of paid sick leave should tread very carefully. While aesthetic reasons may initially spring to mind when we think of cosmetic surgery and procedures, the reasons that people may choose to undergo cosmetic procedures can be much more complex than that. Indeed, people may elect to undergo cosmetic surgery and procedures for any number of physical or mental health reasons: for instance, skin grafts following a burn, breast enhancement as part of reconstructive surgery following cancer treatment, breast reduction due to back pain, facial feature alteration in circumstances where a person’s mental health may be affected due to an insecurity in their appearance, and so on. As such, for an employer to differentiate between employees receiving sick pay for certain types of procedures but not for cosmetic procedures, based on the employer’s assumption that the procedure is purely for aesthetic purposes, that may give rise to claims for discrimination on the grounds of disability, where the employee opting to undergo a cosmetic procedure may have an underlying medical reason for doing so.

It is worthwhile noting that the Employment Equality Acts 2000 to 2018 (“the Acts”) provide for exemptions to discrimination in respect of the provision of goods and services under certain grounds, one of which being the gender ground. Specifically, it is not discrimination under the Acts to treat a person differently on the gender ground when providing aesthetic, cosmetic, or similar services which require physical contact between the provider and recipient.

Contractual Sick Pay

Where employers offer contractual sick pay to employees over and above their statutory sick pay entitlements, employers could decide to specify in their absence policies whether employee absences due to undergoing elective cosmetic procedures are excluded from the scope of a company sick pay policy. Our advice would be that, where absence policies do specifically exclude cosmetic procedures from their ambit, employers should nonetheless consider employee requests to take sick leave for the purposes of undergoing cosmetic procedures on a case-by-case basis. This is due to the above-mentioned risk of inadvertently giving rise to a claim of discrimination for having incorrectly assumed that a cosmetic procedure was being undergone for purely aesthetic purposes, whereas, in reality, the employee may have a genuine medical or personal reason for choosing to undergo such procedure.

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