Daphne William: Hello everyone. My name is Daphne William.
I am a partner in our employment department in our Johannesburg office.
Today I'm joined by Owethu Mbambo, my fellow partner.
Owethu Mbambo: Hi everyone! Daphne and I provide legal advice to national and multinational businesses on their employment,
labour, occupational safety and employment equity matters.
Daphne William: October is Mental Health Awareness Month and today we are diving into a topic that is becoming important for employers
and that is how to manage mental health in workplaces.
Owethu Mbambo: This is absolutely an important topic at the moment, Daph.
Mental health in the workplace isn't just about wellness, it's also about legal compliance and creating a safe,
productive environment for employees.
So in this episode, we'll unpack what the law says.
Give practical steps for employers to consider and explore what happens when mental health results in an employee's
incapacity to work, and an employer's obligations to address that incapacity.
Daphne William: Employers need to understand that mental health affects not only employees,
but also their bottom line. Globally, 15% of working adults live with a mental disorder.
Depression and anxiety are common in the workplace and cost the economy nearly a trillion dollars every year.
Owethu Mbambo: While Daphne, those are some really significant figures.
In the South African context, the Occupational Health and Safety Act requires employers to
ensure that workplaces are free from physical and mental health risks.
We also have the Employment Equity Act, which prohibits discrimination based on disability.
This includes mental health conditions.
So ignoring mental health isn't just bad for workplace morale,
it's also a legal risk for employers.
Internationally, on the other hand, the World Health Organization guidelines and the
International Labour Strategy emphasize prevention and support as key mechanisms to deal with mental health.
Locally, we also have the Sans ISO 4501 standard, which makes it clear that mental health is
part of occupational safety. Employers are required to identify psychosocial hazards in terms of the standard,
such as excessive workload or harassment, and ensure that they mitigate these hazards.
Daphne William: Thank you for taking us through the legal framework that that govern employers obligations when it comes to mental
health and safety in the organisation.
But can you just explain to us practically how does this look like?
What do employers have to do to implement these obligations?
Owethu Mbambo: Practically, this means employers must conduct risk assessments and identify the psychosocial hazards in their
workplace and ensure that they involve employees in these risk assessments.
It's not enough for employers to just offer an employee assistance program and hope for the best.
Employers must also implement systemic fixes such as reasonable workloads,
predictable schedules, and anti-bullying policies.
Daphne William: Thanks. Owethu, just explain to us very high level, what three factors should employers have in mind when
effectively managing mental health in the workplace?
Owethu Mbambo: Of course. So their first prevention, as the old adage goes,
prevention is the best cure. In this case, employers must consider prevention measures such as
redesigning work where possible, implementing clear anti-harassment policies,
and training managers to spot stressors in the workplace.
And then secondly, employers must look at how they can promote and protect mental health in the workplace.
So this would include measures such as training staff to reduce stigma,
encouraging help seeking by employees, and protecting privacy of employees because employees want
to feel safe and disclose in an environment where they do not fear that there may be reprisals for struggling with
mental health. And lastly, employers need to consider how they can support employees that are already struggling with
mental health in the workplace.
This would include reasonable accommodations such as the adjustment of duties,
considering flexible working hours and phased returns to work,
or structured returns to work.
For employees who have been off work for some time due to mental health,
and also having quality assistance programs for employees.
It is important to remember again that employee assistance programs are not a substitute for organisational change.
Daphne William: We know that mental health also affects an employee's ability to perform their work and may result in the employee
being incapacitated. The code of good practice on dismissals sets out guidelines to employers and employees on how to
deal with the legal obligations placed on employers under the Labour Relations Act regarding dismissals for
incapacity. The new code was published on the 4th of September 2025 and has replaced the old code.
It's very important to highlight that this code provides that incapacity can occur as a result of mental ill health,
so mental ill health is recognized as a ground for incapacity,
and this can be either temporary or permanent incapacity.
Employers are required to determine the degree and cause of the incapacity when considering dismissing employees,
as it is those two factors that will be relevant when determining the fairness of a dismissal.
So how do employers do this? Employers are required to investigate the extent of the incapacity.
The employer is also required to investigate all possible alternatives short of dismissal.
If the employee is likely to be absent for an unreasonably long period due to their mental health.
If the employee's incapacity is found to be permanent, an employer is required to ascertain the possibility of
securing alternative employment for the employee, or alternatively,
adapting the employee's duties or work to accommodate their mental ill health.
Owethu Mbambo: It appears that the code does provide a lot of guidance on the issue.
So, what is an employer expected to do if an employee raises mental health as a defense to a poor performance
process?
Daphne William: That's a very good question. O2, we know that employers are required to follow two different
processes when dealing with poor work performance, and a different process when dealing with an employee's
incapacity as a result of ill health.
If mental illness comes up as a defence in a poor work performance process,
the question becomes whether an employer is obliged to incorporate or change the process that they are currently
following. We know that an employer would follow an incapacity process for ill health when an employee is
incapacitated. However, the employer would follow a separate process when the employee's poor work performance is an
issue. In those instances, an employer would have to ascertain whether the employee has successfully shown that
poor work performance was as a result of their mental wellness.
If that is the case, the employer would have to combine or change the process depending on the facts that is faced by
the employer.
Owethu Mbambo: So def how have our courts dealt with this issue of mental health?
Daphne William: The courts have provided guidance to employers on this issue of mental health in light of poor work performance as well
as mental health in light of misconduct charges.
And the Labour Court has confirmed that employers must deal with depression or any mental illness issues raised by
employees sympathetically. The employer must explore reasonable accommodation as part of the investigation
process and, importantly, the courts have highlighted that dismissal should be of last resort.
The courts have made it a point to employers where it found in a separate case that dismissal was unfair,
where the employer failed to investigate the incapacity before disciplining an employee for misconduct.
The message here is that if ill health, mental ill health specifically is raised,
employers cannot ignore it.
Owethu Mbambo: Essentially, Daph we can sum up this discussion as saying that employers need to ensure that they have prevention
mechanisms in place, that they also promote positive mental health practices in the workplace and ensure that they have
adequate support for employees and where mental health does affect an employee's capacity to work.
An employer must investigate and accommodate an employee where possible,
and only consider dismissal as a last resort.
Daphne William: Exactly Owethu, mental health is part of workplace safety and good businesses.
Employers need to ensure that they are not indifferent when dealing with mental ill health.
It's also very important to highlight that every case is unique.
So if you are dealing with a mental health issue in your workplace,
get tailored legal advice before taking any action.
Thank you very much for joining us today.
Owethu Mbambo: Thank you everyone.