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Addressing mental health-related issues in the workplace can be difficult. Employers should manage employees with such issues carefully and fairly, working with, rather than against, them. Helping the employee to deal with their condition may alleviate the need to terminate their employment.
Mental health-related issues can lead to decreased productivity and work performance, poor working relations among colleagues and increased absenteeism due to illness. It can also compromise workplace safety.
Over the past few years, employers have seen an increase in the number of employees suffering from mental health issues, and Covid-19 has seen a refocus on mental health in the workplace. The virus and the anxieties resulting from it, however, are only additional factors to mental-health issues among employees. Poor working conditions, excessive or insufficient workloads and poor leadership may also contribute towards them suffering from mental problems.
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Depression is one of the most prevalent conditions experienced by employees in the workplace. According to the World Health Organisation, approximately 350 million people (including about 27% of South Africans) suffer from it. It is also estimated that employee absenteeism on account of depression costs the South African economy approximately R19 billion a year.
From a legal perspective, the judgment of the Labour Appeal Court in Legal Aid SA v Jansen [2020] 11 BLLR 1103 accepted that depression should be regarded as a form of ill health within the workplace environment.
- Educating employees on mental-health issues and how these could impact their work performance or conduct in the workplace;
- Training managers in identifying signs of mental health issues in employees early to provide the necessary interventions as soon as possible;
- Supporting employees by maintaining regular communication with them; and
- Encouraging employees to utilise their annual leave to rest and recuperate from time to time.
Notably, employers should guard against disciplining or prejudicing employees who suffer from mental health-related issues. An employer who identifies any sign of a mental health issue in an employee should first consider taking an informal approach in assisting them as far as reasonably practicable. This may include granting the employee time off in the form of sick/annual leave and/or providing counselling to them.
Some employers have established employee assistance programmes to support staff members dealing with mental health issues. These programmes are not only be beneficial to employees’ wellbeing, but also help them maintain good work performance and good conduct in the workplace. If an employer does not have an employee assistance programme, they should educate employees about organisations such as the SA Depression and Anxiety Group.
READ: The antidote for anxiety in the workplace
Many employees suffer in silence and are afraid to disclose their mental health issues to their employer for fear of being prejudiced or stigmatised in the workplace. To alleviate these fears, employers should create an environment where employees can freely disclose their mental health issues before these have a negative impact on their work performance, or result in inappropriate conduct. The confidentiality of these conversations should be strictly maintained by the employer.
However, where a mental health-related issue persists and consequently has a negative impact on an employee’s work performance or conduct, it may result in the termination of their employment. For example, the Labour Appeal Court in the Jansen case ruled that depression that incapacitates an employee may be a legitimate reason for terminating their employment, provided that a fair procedure is followed by the employer.
Code of good practice
Dismissal places an obligation on an employer to ascertain whether the employee can fully perform the normal duties for which they were hired. If they are not, the employer must establish the extent of their incapacity and its likely duration.
In the Jansen case, the Labour Appeal Court confirmed that if an employee is unable to work for a prolonged period due to depression, the employer must consider alternatives before resorting to dismissal. If the depression (or other mental health issue) is likely to impair the employee’s performance permanently, the employer must first attempt to reasonably accommodate the employee’s disability – for example, by ascertaining whether alternative work can be found for them, even if it is at reduced remuneration.
In addition to the above, procedural fairness would include ensuring that the employee has been properly counselled and the impact of their mental health issues on their performance or conduct has been discussed with them. An employee must also be provided with a fair opportunity to contest the employer’s conclusions about their mental health.
Ramjettan, Moodley, Ngcamu and Johnson are employed by Webber Wentzel
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