As mental health cases in the modern workplace continue to rise, many South African employers face a growing challenge: striking the delicate balance between remaining sensitive to mental health concerns raised by employees and taking reasonable steps to address them, and maintaining operational efficiency.
The challenges
South African employers may face several challenges when dealing with mental health in the workplace. Examples of these challenges include:
- Stigma and delayed disclosure: Applicants and employees may be hesitant to disclose their mental health struggles prior to or upon commencement of employment due to fear of stigma, discrimination, non-appointment or job loss. This can lead to a delayed disclosure of the mental health concerns by employees, which we frequently see raised by employees when they are failing to meet performance standards and are placed under performance management. In turn, this can place additional obligations on the employer that it may not be operationally prepared for. For instance, significant time and resources may have already been spent by the employer on coaching, training and other forms of support in the context of a performance management plan, when in reality, what the employee needed was mental health support and accommodation. This means additional resources.
- Lack of resources: The reality is that many South African businesses, particularly small and medium-sized enterprises (SMEs), may not have adequate resources to provide extensive mental health support and workplace accommodations due to, for example, the size and nature of the workplace. Therefore, employers in these circumstances are often placed in a stressful position when employees raise mental health concerns as the viable accommodation measures available to them are limited.
- Productivity and performance: Employers, particularly smaller businesses, may struggle to balance maintaining operational efficiency and complying with their legal obligations to reasonably accommodate employees who are unable to perform optimally due to mental health concerns. For instance, where an employee is frequently absent due to mental health issues, or where their responsibilities have been reduced to accommodate the concerns, this may result in key resource gaps which impact business operations and workplace morale as it may place additional pressure on other staff members.
- Employees on probation: Mental health concerns raised by an employee as a reason for underperformance during the probation period can be particularly difficult to navigate. In such a case, an employer cannot simply performance manage the employee in the ordinary course and will need to consider ill health accommodations, but to what extent? This can become complex as there are various factors that an employer may need to consider, such as extending the probation period, reducing workload, permitting additional time off and the overall impact of this on its operations and other staff members.
- Fear of litigation and reputational damage: Some employers tend to panic when mental health concerns come to the fore as there seems to be a common misconception that an employer needs to accommodate an employee’s ill health in all respects, regardless of its operational needs, failing which it will be sued and/ or be labelled as insensitive to the mental wellbeing of its staff. Without detracting from the seriousness of mental ill-health (or any form of ill health) in the workplace, this misconception can lend itself to abuse by employees who falsely claim mental health problems in the face of misconduct or poor performance allegations, making the employer apprehensive to take further action. It is therefore important that a proper investigation be done to ascertain the true cause of the employee’s poor conduct in the workplace and that each case be dealt with on its own merits.
- Legislative compliance: South African labour law offers various protections to employees facing ill health concerns, including the Employment Equity Act, the Labour Relations Act and the Occupational Health and Safety Act. Employers must ensure compliance these laws when dealing with mental health cases and at the same time, ensure commercial fairness and efficiency.
Striking a balance
To address these challenges, employers should aim to strike a balance between maintaining efficient business operations and reasonably accommodating employees who are mentally unwell (with dismissal as a last resort). In this regard, it is important to note that the law does not require an employer to do everything in its power to accommodate the employee’s mental health issues in the workplace, only accommodations that are reasonably and operationally practicable are required. Some strategies to achieve the desired balance may include the following:
- Create a supportive work environment: Foster an open and inclusive culture that encourages employees to disclose their mental health struggles without fear of stigma or reprisal.
- Provide reasonable accommodations: Depending on the nature and extent of the mental health concerns and the employer’s business, reasonable accommodation to support employees with mental health conditions may include flexible work arrangements, modified duties, or temporary leave. However, such accommodations need to be reasonable and possible in relation to what is operationally viable for the business in question.
- Establish clear policies and procedures: Establish a policy that outlines procedures for addressing mental health issues, providing support, and ensuring compliance with relevant laws and regulations.
- Document and record keeping: Keep records of all documents, meetings, and correspondence in relation to each case raised, including medical certificates, sick leave records, and any workplace accommodations that have been implemented.
- Medical certification and validation: Require medical certificates from a qualified healthcare professional for frequent absences, or absences longer than two days to establish whether the employee is fit to work and validate such certificates where appropriate. This will also provide some guidance on what accommodations, if any, can be made.
- Train managers and employees: Provide training on mental health awareness, recognition, and response to ensure that managers and employees are equipped to investigate and assess cases of mental ill health and support colleagues with mental health conditions.
Addressing mental health in the modern workplace requires a nuanced and multifaceted approach. By implementing the above strategies and being adequately prepared, employers can strike the balance of creating both a fair and supportive work environment that benefits both the employee and the organisation.
Sian Gaffney is a Senior Associate at Bowmans. This article appeared on Bowmans.
