Mental health and the workplace: The role of the employer

September 1st, 2020
x
Bookmark

Mental health has been an issue that has been of concern for some time now, but since the start of the COVID-19 pandemic around the globe, attention to this issue has increased. According to an online survey conducted in April by the South African Depression and Anxiety Group (SADAG) on COVID-19 and Mental Health, 59% of the surveyed people suffered from stress prior to the lockdown and 65% felt stressed during the lockdown (www.sadag.org). These statistics point to the reality that almost every person will experience some sort of mental illness during their lifetime. The worrying issue is not the fact that people suffer from mental illnesses but rather the stigma that is attached to it, which can hamper the way forward to help those who suffer from such an illness. The workplace plays an important role when it comes to building a way forward, and the need for both employers and employees to be able to create and develop understanding is vital.

According to a 2017 study, conducted SADAG on ‘Mental Health and Stigma in the Workplace’, 72% of the surveyed people said that mental illness was affecting their work performance and that their attempts to seek an understanding from their superiors were generally futile since 69% of them displayed indifference and a negative attitude (www.sadag.org). Such attitudes need to change if employers want a healthy and progressive environment for their workers. Cases over the years have pointed to this need and have created a kind of precedent that mental illness is not to be taken lightly and should not be a ground for discrimination and exclusion. Furthermore, employers will have to be comprehensive in their inquiry/investigation regarding the link between the mental health and performance of their employee before they decide to take a drastic step such as dismissal.

In Independent Municipal and Allied Trade Union obo Strydom v Witzenburg Municipality and Others [2012] 7 BLLR 660 (LAC) the court held that a thorough investigation was not carried out by the employer in order to conclude that it was unable to adapt to the employee’s working conditions so as to accommodate the incapacity (mental illness) or that it was unable to offer the employee a suitable alternative position. The dismissal of the mentally ill employee was, therefore, unfair added to the fact that the employer did not actively take steps to eliminate the stressors that contributed to the mental illness of the employee. In L S v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 2205 (LC) the court similarly held that the dismissal of an employee who suffered from a mental illness was unfair because the employer failed to investigate the performance of the employee. The court went on to state that mental illness is not a wilful denial by the employee to perform but rather their inability or incapacity to perform, and such needs an approach of understanding from the employer.

Marsland v New Way Motor and Diesel Engineering [2008] 11 BLLR 1078 (LC) brought to light that the discrimination of a person based on mental illness can impair the fundamental dignity of a person as a human being or affect them in a comparable, serious manner. The recent case of Jansen v Legal Aid South Africa [2019] JOL 42192 (LC) held the same and further stated that the employer had knowledge of the employee’s disability (mental illness) and, therefore, was under a duty to reasonably accommodate such an employee but failed to do so.

The first two cases saw mental illness as being an incapacity, while the second two cases saw it as being a disability. Regardless of the manner in which the court decides to view a case, it is evident that the courts do not tolerate slackness by an employer when it comes to understanding, accommodating and investigating the position of an employee’s mental health. Reasonable steps will, therefore, need to be taken by the employer. Such steps cannot be dictated by law as the needs of every employer differs, however, should any matter reach the courts, each situation will be decided on its own merits.

In order for employers to ensure that the stigma associated with mental illness is eliminated and reasonable attempts to assist their mentally ill employees are made, the following can be done:

  • Create a workplace environment that promotes the reality and acceptance of mental illness and breaks the negative associations attached to it.
  • Provide education to management and human resources on how to understand, manage, support and assist mentally ill employees.
  • Promote assistance programmes (such as mental health awareness, stress management and counselling) to employees.
  • Refer mentally ill employees to mental health care practitioners or programmes.
  • Implement flexible working hours or allow for temporary remote working when it may be needed.

With the rate of mental illnesses climbing due to the lockdown and the general COVID-19 situation (as illustrated in the statistics mentioned above), it is vital that employers find a way to balance the needs of business and the needs of its employees to ensure that productivity is maintained and mental health is supported.

Sujata Balaram LLM (UKZN) is an Editor: Commentaries at LexisNexis in Durban.

This article was first published in De Rebus in 2020 (Sept) DR 9.