OHS isn't just physical: Why employee mental health is also your business

Image source: Amy Walters – 123RF.com

This is according to experts in the employment law practice at commercial law firm Cliffe Dekker Hofmeyr (CDH), who say that the workplace should not only be physically safe but also psychologically supportive, as mental health is increasingly recognised as a crucial aspect of employee well-being.

"Our occupational health and safety (OHS) legislation places a duty on every employer to maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of its employees. In 2018, the OHS legislation was expanded to specifically acknowledge that an organisation’s duty on workplace safety includes the promotion and protection of both its workers’ physical and mental health."

Legalities of mental health issues

With the increasing prevalence of mental health issues, it is crucial for employers to understand the legalities and address them, says CDH experts.

CDH points to the 2024 State of the Global Workplace report, produced by global business consultancy and researcher Gallup, which highlights several key findings related to employee mental health, including the fact that in 2023, global employee engagement stagnated, and overall employee well-being declined.

"In relation to South Africa specifically, respondents reported feeling high levels of negative emotions such as sadness, anger and loneliness – with no indication that these levels are on the decline."

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Addressing misconduct

CDH explains that these types of mental health issues often (but not always) manifest in the workplace in the form of poor or lacklustre performance on the part of the employee. Employers have been taught to respond to poor performance in the manner prescribed in Schedule 8 of the Code of Good Practice – Dismissal, by embarking on a performance improvement programme (PIP).

But CDH says that the lines become obscured where mental health issues manifest in other forms of misconduct such as acts of gross insolence, emotional or even violent outbursts, gross insubordination or irrational behaviour. "These issues are much harder to identify especially in the face of pending misconduct disciplinary action, where emotions are running high and the trust relationship has been impacted."

Labour and employment legislation

CDH adds that mental health issues have predominantly been addressed as an ‘ill health’ (incapacity) issue and not as a disability. The problem with this approach is that where mental health in the workplace is treated as an incapacity issue, employees suffering from debilitating mental health issues, are not afforded the necessary protections prescribed under the Labour Relations Act, 1995 (LRA) and the Employment Equity Act, 1998 (EEA).

CDH says that neither the LRA, nor the EEA define what is regarded as a ‘disability’ within the employment law context, and whether it can be (fairly) treated in the same manner as ‘ill health/incapacity’. And our Labour Court has been divergent on this issue. This makes it extremely important for employers to conduct proper investigations where they seek to dismiss poor performing employees who may suffer from, inter alia depression.

CDH adds that it also highlights the importance of appointing skilled disciplinary chairpersons who understand the finer intricacies of labour law, and categorising issues properly to ensure all procedures and tests are followed and applied when chairing disciplinary hearings.

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Assistance

Due to the varied labour court outcomes on mental health related cases, CDH says that employers may well be under a statutory duty to provide assistance to employees suspected of suffering from mental health issues. This places an additional burden on the employer and further begs the question ‘to what extent must an employer go in order to satisfy its OHS obligations?

CDH experts share the following advice for employers, gleaned from case law and the various legislative provisions:

• When an employer is faced with an employee who is suffering from mental health issues, the employee should be provided with as much support as reasonably possible and practicable. This may include an investigation by the employer to establish measures that may assist the affected employee or to adapt the working environment if this is practicable.
• Throughout the discussions with the employee, the employer should establish whether the illness is temporary or permanent and if there are any alternatives possible to avoid dismissal.
• Furthermore, and irrespective of the duration of the employment, the employer should always provide the employee with an opportunity to state a case.
• Should there be no alternative available short of dismissal, the employee may be dismissed for incapacity. However, the employer should be able to provide solid evidence that all viable alternatives were considered to avoid legal complications should the employee object.