Warning as NI companies may be liable to give staff sick leave to get 'Turkey teeth' or BBL surgeries

A Northern Irish company was forced to pay sick leave to an employee who took time off in order to get a 'Turkey Teeth' procedure carried out.

HR and Employment law specialist Dylan Loughlin, Principal Consultant at Copacetic Business Solutions in Belfast has highlighted the case as he warns businesses that they could be liable to pay sick leave to employees for cosmetic surgeries such as veneers, BBLs and tummy tucks if they don't have the correct policies in place.

He highlighted the case of one third sector company in Northern Ireland, which is described as having a "generous" sick leave policy, that found it was liable to pay sick leave to an employee if she took time off to get cosmetic surgery.

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She had told her employer she was taking time off for sick leave to have a dental procedure carried out abroad, which turned out to be veneers. The employee submitted a medical letter from the overseas clinic, confirming the procedure and recommending five days of recovery.

While the company initially approved the time off, however after discovering the procedure was elective and cosmetic, they expressed frustration and questioned whether it fell within the scope of the sick pay policy.

It's policy stated: "Time off on sick leave includes undergoing a day procedure or any other procedure by a medical practitioner which is related to your health.”

The company felt that as the procedure was not medically necessary it did not fall under the sick leave policy, they also didn't believe its policy was designed to cover cosmetic procedures not essential to someone's health and felt this would set a precedent for future abuse of the policy.

But the employee argued that the sick leave policy did not explicitly exclude cosmetic procedures and the phrase "any other procedure related to your health" was broad enough to encompass her situation. She also said the procedure would have enhanced her confidence, improving her overall well-being and that she had followed the company's policies correctly.

In the end due to the wording of the company's policy which said “undergoing […] any other procedure by a medical practitioner which is related to your health” it ended up having to pay the sick leave.

Dylan warned that the wording of sick leave policies are very important and that it can be very difficult for a company to deny sick leave after a cosmetic procedure.

He said: "Regardless of the reason for the surgery, an employee will usually be entitled to Statutory Sick Pay (SSP) if they are deemed to be “incapable by reason of some specific disease or bodily or mental disablement of doing work which they can reasonably be expected to do” under their contract.

"If a doctor advises that an employee should stay off work to recover, this would generally count as incapacity, and SSP should be paid, provided all eligibility conditions are met. If the employee provides a valid fit note, it would be difficult to justify withholding SSP. Note that the Sick Pay Regulations are dated 1982, so it’s unlikely that parliament envisaged new teeth or a BBL.

"For employers who offer contractual sick pay on top of SSP, whether this applies to recovery from cosmetic surgery will depend on the specific wording of the contract or any implied rights that may have developed through custom and practice. If the sick pay policy explicitly states that “any absence” due to ill-health is covered, then recovery time after cosmetic surgery will likely fall under this, and the employee should be paid—so long as they meet the reporting requirements."

Dylan also explained how the law works for employers and employees with regards to taking time off work and what their rights and entitlements are.

He said: "Many cosmetic procedures require employees to take time off work, but employers and employees may not always see eye to eye (or lifted eye to lifted eye!) on how this should be handled.

"There’s no statutory right to time off for medical appointments, except for certain ante-natal ones. Unless a contract or company policy grants this right, time off to attend an appointment with a cosmetic surgeon is generally at the employer’s discretion. However, employers need to exercise discretion carefully and fairly.

"When it comes to purely aesthetic cosmetic surgery, employers might take the view that such procedures are not health-related and may hesitate to grant sick leave. They may see cosmetic surgery as a lifestyle choice, suggesting that annual leave or unpaid leave should be used instead. This can be reasonable in certain situations. For example, if an employee is fit for work but feels self-conscious about returning with visible bruising after eyelid surgery, agreeing to use holiday leave might be a workable compromise.

"On the other hand, employees might argue that any recovery period, even after elective aesthetic surgery, should be classed as sick leave if they are medically unfit to work. For instance, someone recovering from breast augmentation might not be able to return to work for a couple of weeks if their doctor has advised rest. They could reasonably claim this is no different from any other illness or recovery period.

"If a doctor has recommended time off for recovery, it would be risky for an employer to insist the employee return to work before they are ready. In practice, many employers find a middle ground in combining paid leave, holiday leave, and unpaid leave to accommodate the situation.

"However, if the procedure is elective but medically necessary, such as reconstructive surgery following an accident, employers should treat it like any other health issue and allow the employee to take sick leave."

To find out more about Copacetics’ HR & Employment Law services, including support with your policies, visit their website.

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