The recognition of mental health as a core component of employee well-being has become increasingly significant within South African workplaces. Employers are not only required to act with empathy and awareness but must also comply with a robust legal framework that governs how mental health issues are addressed.

Ensuring legal compliance while maintaining operational efficiency requires a thoughtful and well-informed approach.

The Constitution of the Republic of South Africa, 1996 provides the bedrock for the protection of mental health in employment, guaranteeing the rights to equality (Section 9), dignity (Section 10), and fair labour practices (Section 23).

Several key statutes reinforce these constitutional protections:

• The Employment Equity Act 55 of 1998 (EEA) prohibits unfair discrimination based on disability, which includes mental health conditions.
• The Labour Relations Act 66 of 1995 (LRA) sets out procedures for dealing with incapacity, dismissals, and workplace disputes.
• The Occupational Health and Safety Act 85 of 1993 (OHSA) obligates employers to maintain a work environment that is safe and not detrimental to either physical or psychological well-being.

These instruments, combined with the South African National Standards (SANS) and judicial precedent, form a comprehensive framework for managing mental health in the workplace.

Supporting Employees While Meeting Business Demands

Employers have a dual responsibility: to offer appropriate support to employees grappling with mental health challenges, and to ensure that workplace productivity and operations are not compromised. This balance has become increasingly important as mental health intersects with legal issues such as misconduct, incapacity, and constructive dismissal.

The Labour Appeal Court in Legal Aid South Africa v Jansen [2020] 41 ILJ 1644 (LAC) explored the tension between mental illness and misconduct. In that case, an employee diagnosed with depression failed to follow instructions and report for duty. Although the employee acknowledged the misconduct, he attributed his behaviour to his deteriorating mental state, which had been confirmed by a psychologist.

The Court held that the dismissal was procedurally and substantively fair but stressed the necessity for employers to evaluate the relevance of medical evidence. It affirmed that while mental illness does not excuse misconduct in every case, failure to consider the medical context may render the disciplinary process flawed.

Employers can mitigate legal and reputational risks by taking the following steps:

• Training and Sensitisation: Provide education for line managers on recognising signs of mental health difficulties and responding appropriately.
• Constructive Engagement: Maintain ongoing communication with affected employees, ensuring that interactions are documented and handled confidentially.
• Policy Development: Adopt workplace mental health policies that reflect legal obligations and best practices.
• Assessment-Driven Decision-Making: Base disciplinary or incapacity processes on proper medical evaluation and evidence rather than assumption or stigma.

A legally compliant and ethically sound approach to mental health in the workplace is no longer optional – it is a legal imperative. Employers must remain mindful of the fine line between legitimate operational requirements and their legal duties under South African law.

By Azraa Hoosen (Candidate Legal Practitioner) | Litigation Department