HR Expert: Contractual Sick Pay

My client pays contractual sick pay and one of their employees is having elective surgery. Do they still have to pay them? 

As elective surgeries such as plastic or cosmetic procedures continue to grow in popularity it is important to apply a consistent approach to this issue but remember that it may also need to be flexible. It can be frustrating for employers when their employees take prolonged periods of time off work due to illness but your client should ensure they are fully aware of the obligations placed upon them during this time.

It is highly likely that the effects of the surgery will leave the employee unable to work for a period of time, meaning they will require time away from work to recover. Your client is required to provide Statutory Sick Pay (SSP), currently £92.05 per week, to all employees who meet the qualifying conditions. All employees who meet eligibility requirements should receive this regardless of their condition, including if the employee chooses to have surgery that is otherwise not necessary for their current health requirements.

This changes slightly when employers provide contractual sick pay, which is an enhanced form of payment for sickness that is set independently by the employer. Whilst the employer must still follow the basic statutory requirements of SSP they can reserve the right to not provide contractual sick pay for the time off if the reason is for elective surgery and this is clearly outlined in their contract of employment. If the contract states that sick pay will be provided for all sickness absence, there is little argument for withholding it and your client would be obliged to provide payment.

Going forward, it may be advisable for them to implement and maintain a policy where they are able to withhold contractual sick pay depending upon the specific circumstances. However, they should bear in mind that a decision to undergo surgery may be highly important to the employee and related to a disability in which case it may breach anti-disability discrimination laws to deny the employee full payment. Some elective surgeries may be undertaken as a method to combat mental health problems and, again, if the mental health condition to taken to be a disability, could require payment during the absence as a reasonable adjustment regardless of a policy to withhold contractual sick pay for elective surgeries.

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