Warning to South African bosses about mental health in the workplace

The workplace is changing and as such, there are evolving responsibilities of South African employers regarding employee mental health within the framework of occupational health and safety.

This is outlined by Director in Employment Law at Cliffe Dekker Hofmeyr Fiona Leppan and candidate attorney Dylan Greenstone, who explain that mental health is regarded as an integral part of workplace safety in South Africa.

As such, employers have a legal obligation to ensure a work environment free from mental health risks, as much as is reasonably practicable. Failure to comply can lead to legal action and penalties.

This is stipulated in key legislation and regulations, including the Occupational Health and Safety Act (OHSA) and the South African National Standard (SANS) 45001.

The SANS 45001 provides a structured approach to mitigate risks to both physical and mental well-being while the OHSA also requires employers to address mental health risks to achieve a safe work environment.

Unaddressed mental health issues, such as stress or burnout, can significantly impact workplace safety and productivity.

These issues can lead to increased absenteeism, reduced productivity, and potentially contribute to workplace incidents.

The impact of mental health on employee performance is another crucial consideration.

The Labour Appeal Court, in the case of Independent Municipal and Allied Trade Union obo Strydom v Witzenburg Municipality and Others (2012), highlighted the importance of factoring mental health into employee performance evaluations and dismissal procedures.

The court emphasised the need to investigate whether mental health conditions contributed to an employee’s poor work performance. It clarified that even when an employee’s mental health affects their work capacity, employers must still adhere to the Code of Good Practice on Dismissal.

This involves:

• Determining if the employee can continue working in their current or another suitable role;
• Exploring reasonable accommodations or adjustments to working conditions to enable continued employment.

Leppan and Greenstone said that dismissal for incapacity can only be considered fair if these inquiries show that no reasonable accommodation is possible. Failure to follow this process could render the dismissal unfair.

The legal framework also safeguards employees from harassment based on mental health.

The Employment Equity Act 55 of 1998 prohibits such harassment as a form of unfair discrimination, further reinforced by the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace.

This code explicitly covers harassment based on psychological harm.

Thus, the legal experts explained that employers are obligated to proactively create an inclusive work environment by implementing clear policies against harassment, providing regular training on the Code of Good Practice, and establishing confidential complaint mechanisms.

“Employers should be made aware that, in practice, treatment of employees with mental health issues should be accommodative, and not exclusionary,” said Leppan and Greenstone

By proactively addressing mental health in the workplace, using frameworks like SANS 45001 and WHO guidelines, the experts explain that employers can not only ensure legal compliance but also enhance employee productivity and create a more engaged and sustainable workforce.

Additionally, Leppan and Greenstone explained that the inclusion of mental health in workplace safety reflects its growing importance in society.

By embracing this shift, employers can fulfill their legal obligations and foster a healthier and more productive work environment for all.

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