Cosmetic surgery is more popular than it has ever been. According to the British Association of Aesthetic Plastic Surgeons (“BAAPS”), nearly 17% more cosmetic operations were performed in 2013 than in 2012, with over 50,000 surgical procedures last year. This upward trend is expected to continue.
With many feeling (real or perceived) pressure to look good and/or younger at work, it is not surprising that employers are increasingly facing issues caused by cosmetic surgery. So, what are the key points for employers?
TIME OFF WORK
Many cosmetic procedures will require time off work, but employers and employees may not see eye to (lifted) eye about how this should be treated.
There is no statutory right to time off to attend medical appointments, except for certain ante-natal ones. Unless there is a contractual right to such time off, leave to attend an appointment with a cosmetic surgeon is likely to be at the discretion of the employer. However, care should be taken in exercising discretion (see below).
Similarly, there is no statutory right to take time off work for sickness, although most employment contracts include express provision for sick leave. In reality, there will probably be an implied right for employees to take time off when they are sick, but should elective cosmetic surgery count as sickness?
If employees are undergoing cosmetic surgery for purely aesthetic reasons, employers may take the view that they are not sick and be reluctant to allow sick leave. Some may view aesthetic surgery as a lifestyle decision, rather than a health issue, and consider employees should take holiday to have it carried out. In some cases this may be a reasonable approach. Where, for example, an employee is fit for work, but embarrassed about attending with a bruised face following eyelid surgery, he may not be entitled to any sick leave at all. Agreeing that he take holiday could be a good compromise.
However, employees might argue that, even if the surgery was for purely aesthetic reasons, any period of recuperation should be classed as time when they are unfit for work, requiring them to take sick leave, especially if a doctor has recommended time off at home to recover. Someone who has had a boob job, for example, may not be able to come in to work for around 2 weeks on doctor’s advice and could argue that this is no different to any other sickness absence.
In situations where a doctor has recommended time off following purely aesthetic surgery, it would be dangerous to insist that an employee must come in to work. In reality, many employers will agree arrangements with the individual, perhaps involving some paid leave, some holiday and some unpaid leave.
If an employee is undergoing elective surgery at a doctor's recommendation to correct a health issue, such as reconstructive surgery following a disfiguring accident, employers should normally treat this as they would any other health matter and allow the employee to take sick leave.
Payment for absence due to cosmetic surgery can also be a thorny issue.
Whatever the reason for the surgery, if an employee is, or is deemed to be, “incapable by reason of some specific disease or bodily or mental disablement of doing work which he can reasonably be expected to do” under his/her contract of employment, he/she will be entitled to statutory sick pay (“SSP”), provided the conditions for payment are met. If a doctor advises an employee to stay away from work to convalesce, this will be deemed incapacity and the employee should receive SSP. If an employee provides a fit note, it will be difficult to withhold SSP.
Where employers offer contractual sick pay in addition to SSP, entitlement following cosmetic surgery will depend on the contract wording or any implied right, perhaps developed through custom and practice. If "any absence" for ill-health is covered by an express sick pay term, time off to recover following cosmetic surgery is likely to fall within its ambit and the employee should be paid, if he/she complies with reporting requirements.
Where sick pay is discretionary, employers may be able to refuse payment, at least in purely aesthetic cases. However, in any exercise of discretion, employers should act fairly and consistently, considering each case carefully with a weather eye to the risk of discrimination and breach of trust and confidence claims. It is best to keep a record of decisions taken to assist in future cases, although care should be taken regarding who has access to such information (see below).
Cosmetic surgery brings with it the risk of discrimination claims.
In some cases, cosmetic surgery may involve disability issues. Under the Equality Act 2010, a person is disabled if he/she has a physical or mental impairment which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities.
Undergoing, or recovering from, cosmetic surgery in itself is unlikely to amount to a disability as the process is likely to be relatively short-term. However, where surgery is related to an employee’s disability, for example, reconstructive surgery following breast cancer, the employee will be protected against discrimination and the employer will be obliged to make reasonable adjustments to accommodate him/her. Similarly, if an employee is clinically depressed, links this to his/her appearance and has a nose job in an attempt to overcome the issue, allowing time off could be a reasonable adjustment. Where cosmetic surgery goes wrong, in a serious case it is possible that an employee may become disabled and would be protected by discrimination law.
Special rules apply to absence from work in gender reassignment cases. It will be direct discrimination if an employer treats a transsexual employee who is absent from work due to gender reassignment less favourably than he/she would have been treated if: the absence was due to sickness or injury; or for some other reason and it is not reasonable for the employee to be treated less favourably. The absence will be due to gender reassignment if it is because the employee is proposing to undergo, is undergoing or has undergone the process (or part of the process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex (section 16 Equality Act 2010). This could potentially cover not just principal surgery, but other procedures such as a cosmetic operation to make someone’s brow line more masculine.
Unless an employer treats members of staff of one sex less favourably than the other by, for example, only allowing female employees leave for weight loss surgery, refusing time off to undergo cosmetic work is unlikely to be direct discrimination. However, given that 90.5% of cosmetic procedures last year were carried out on women, a blanket policy of refusing all employees time off or pay for cosmetic work could be seen as indirect sex discrimination (as more women than men would be adversely affected). If so, the employer would need to show that the policy was justified as a proportionate means of achieving a legitimate aim.
An employee wishing to undergo an anti-ageing procedure, such as a face lift, may try to argue that a refusal to allow time off or pay to have it amounts to age discrimination. If the employer has allowed a younger member of staff time off for liposuction (procedures for which were up 41% last year on BAAPS’ figures), this may create a direct age discrimination claim. The employee could also allege that the refusal amounts to indirect discrimination. This is where keeping track of the stance taken on time off for cosmetic surgery can help employers avoid/defend claims. Any suggestion by an employer that a member of staff should undergo surgery to look younger would be high risk and may lead to age discrimination and harassment claims.
Where an employee is planning to have, or has had, cosmetic surgery, there may be an increased risk of harassment. Colleagues may make unwanted comments or jokes about the procedure or its results. Office banter, if it goes too far, can lead to claims. Employers can be liable for discrimination and harassment by their employees, unless they take such steps as are reasonably practicable to prevent it taking place. Having equal opportunities and harassment policies in place will help, as will appropriate training on what employees should and should not do. Care should clearly be taken not to single out individuals during any training, as this may lead to employment claims and allegations of breach of confidentiality.
CONFIDENTIALITY AND DATA PROTECTION
Many employees undergoing cosmetic surgery will view it as a very private matter, even if the results are fairly obvious. If an employee has disclosed confidentially to the employer that he/she is having cosmetic surgery, the employer should preserve confidentiality as far as it reasonably can. In addition, information about the employee’s health will be sensitive personal data under the Data Protection Act 1998. Strict conditions apply to processing such data which will need to be observed. Consultation with an employee planning to undergo surgery about matters such as what colleagues will be told about their absence is likely to help in smoothing the process.
Despite the rising popularity of cosmetic surgery, there are surprisingly few reported cases on the issue. If cosmetic surgery is a concern to them, employers should consider introducing a policy covering their approach, remembering that each case should be considered on its facts. Such a policy should be flexible and could cover matters such as what is viewed by the employer as cosmetic surgery, what procedures are excluded (such as those where medical advice is obtained stating that the treatment is medically necessary) and what approach will be taken to sick pay and leave. Even if an employer does not require a policy specifically dealing with cosmetic surgery, it should review sick leave and pay policies to ensure appropriate flexibility is included.
Consider too that, following surgery, many employees receive a confidence boost and start looking for a new job (and/or partner). If an employer wishes to keep employees following surgery, it may need to take steps to retain them.
This article was published in New Law Journal in June 2014.