A truck driver underwent surgery that was not just for cosmetic reasons, so she was entitled to sick pay from the employer during sick leave following the surgery.

Skrevet af

In order for employees to be entitled to sick pay under one of the collective agreements for laundry workers, which was the relevant collective agreement in this case, they must fulfil the conditions for being entitled to sickness benefits from the employer under the Sickness Benefits Act. If the employee has incurred illness through intent or gross negligence, the right to receive sickness benefits from the employer under the Sickness Benefits Act, and thus the right to sick pay under the collective agreement as well, lapses. Illness in connection with operations performed solely for cosmetic reasons is equated with illness incurred through intent or gross negligence under the provisions of the Sickness Benefits Act.

In this case, the Labour Court had to decide if an employee was entitled to sick pay during sick leave following an operation to remove excess skin, so-called fleur de lis surgery.

The case concerned a truck driver with 20 years’ seniority who underwent gastric bypass surgery for obesity, which she paid for herself, without a doctor’s referral. A few years later, again without a doctor’s referral and at her own expense, the truck driver had excess skin removed from her abdomen in a fleur de lis operation and was off sick from work for three and a half months.

After having consulted its employers’ organisation and arguing that the surgery was cosmetic, the employer refused to pay sick pay to the truck driver during the sick leave. The truck driver did not receive sick pay but received sickness benefits from the municipality for a part of the sick leave following her own application.

The truck driver’s trade union did not believe that the operation was purely cosmetic and therefore brought a case before the Labour Court, claiming that the truck driver was entitled to back pay and that the employer should be imposed a penalty for breach of the collective agreement.

In this respect, the employer submitted that it had not been established that the fleur de lis surgery was medically justified, so the employee was not entitled to sick pay from the employer during her absence after the surgery. As for the issue of having to pay a penalty for breach of the collective agreement, the employer argued that it had acted in good faith.

Surgery was not just cosmetic
In the Labour Court, the parties agreed that the decisive factor for the outcome of the case was whether the fleur de lis surgery was purely cosmetic. The presiding judge attached importance to the truck driver’s explanation of how the excess skin had caused her physical and psychological problems after the gastric bypass surgery, both at work and in her free time, and an email from the operating doctor specifying that the fleur de lis surgery was primarily reconstructive and not just cosmetic.

Against this background, the presiding judge found that the fleur de lis surgery was not performed for purely cosmetic reasons, and the fact that the truck driver had paid for the surgery herself did not change this assessment. Thus, as her right to sickness benefits from the employer had not lapsed, the truck driver was entitled to sick pay in accordance with the applicable collective agreement.

Accordingly, the truck driver’s claim for back pay was upheld. However, the employer was not ordered to pay a penalty for breach of the collective agreement, particularly because the employer had consulted with its employers’ organisation before deciding not to pay sick pay and had followed their instructions. 

Norrbom Vinding notes:

The case shows that the purpose of an employee’s surgery is important when determining whether the employee is entitled to sickness benefits from the employer in connection with absence caused by the surgery. If the employer is in doubt as to whether the employee’s surgery is purely cosmetic, or whether it is medically justified as well, it is recommended to obtain the relevant medical assessments and possibly investigate the possibility of receiving reimbursement of sickness benefits from the local authorities.

In this case, the employer had consulted with its employers’ organisation and followed their instructions on how to handle the situation. As a result of that, the employer was not imposed a penalty even though it had breached the collective agreement.

The content of the above is not, and should not be a substitute for legal advice.