What The Law Says: Employee Mental Health And Role Of The Employer 

What The Law Says: Employee Mental Health And Role Of The Employer 

With estimations that 1 in 6 South Africans suffer from mental health problems, with an average of 23 suicides in South Africa daily,  it is clear that mental health and wellbeing is a topic that demands our attention. Within the employment context, statistics indicate that 50% of those that have been diagnosed with depression have taken time off work during a depressive period, with  54% of people confirming that they had trouble concentrating, couldn’t make decisions, were forgetful and needed more time to complete simple tasks. This led to them making 50% more mistakes than usual during a depressive period [1]. It is clear that mental health and wellbeing of employees significantly influence profits, productivity and contributions to economic  growth[2]. This leads us to ask: what are your obligations as an employer to protect and ensure the mental health and wellbeing of your employees?

The Occupational Health and Safety Act[3] (OHSA) is the main law regulating workplace health and safety. OHSA places an obligation on all employers to provide and maintain a safe working environment as far as it is practically possible [4]. OHSA makes it your obligation as an employer to do all that is reasonably possible to make sure your workplace is free from any risks or hazards that may affect or impact employee’s health and safety. 

Although OHSA itself does not specifically refer to mental health, the South African National Standard 45001 (SANS) which is a government regulation, specifically refers to your duty to ensure workplace health and safety, not only in regard to an employee’s physical health but also in regard to their mental health [7].  This is a legal requirement and can lead to a penalty in the form of a fine or imprisonment for failure to comply. 

Although there are several other regulations that have been published as part of OHSA and are relevant to ensuring and protecting employee health and safety,  an important one in so far as employee mental health and wellbeing is concerned is the OHSA regulations on Ergonomics [8].

Ergo…..What?

Ergonomics is one of those words we have heard being  thrown around, but not many of us know exactly what it means.  In simple terms ergonomics is about the way a workplace is structured around employees.  It looks at the office environment in terms of its design, layout, use of furniture, technology and applicable employee rules, policies and procedures which impact on employee wellbeing [9].

Under the OHSA regulations on Ergonomics, as an employer you have a duty to conduct an ergonomic risk assessment before commencing any work operations [10] in order to identify anything that could expose employees to ergonomic risks which could affect their wellbeing. This could be any aspect, condition or activity in the workplace. 

Still not clear?

In simpler terms, ergonomic risk factors are factors that could negatively impact employee work performance and psychological wellbeing, such as making an employee multitask, or giving them  complex, unfamiliar tasks to do. Or it could be about poor communication, insufficient training, disruptive working environments, inconsistent working hours, work overload and monotonous, repetitive tasks. All of these can lead to burnout, mental strain or chronic fatigue causing psychological stress [11]. 

Let’s look at a practical context….. 

Mike, the owner of a small marketing company which employs approximately 52 employees, designs and arranges the working environment of his employees.  He also has clear policies, procedures and rules that employees know about and agree to comply with. Mike has a duty in terms of the OHSA Regulations on ergonomics, to think about the effect that his workplace design, layout and work activities (that have to happen in order to run his marketing company),  could have on the mental health and wellbeing of his 52 employees. He must think about which activities or work may be too repetitive, boring, difficult, or complex and how this could result in employee fatigue, burnout, stress or depression. 

In terms of the regulations, MIke must do this ergonomic risk assessment after he has consulted with his health and safety representatives and committees and he must repeat this every two years. The risk assessment should clearly identify potential ergonomic risks that may impact on the wellbeing of Mike’s employees. Having identified the potential risks, Mike is now obliged to remove or reduce any ergonomic risks as far as possible by putting in proper control measures [12]. 

To summarise, after Mike has identified workplace tasks and activities that may affect his employees’ psychological wellbeing, he must take  steps that are reasonable and practical to remove or reduce any negative effects this could have on the mental and psychological health of his employees.

What control measures can you use?

Ideally you should aim to completely remove any ergonomic risks in the workplace by reassigning the job or task [13]. However, this is not always practical and so the Regulations recommend substituting the current job or task with one that is less risky to employee’s health and mental wellbeing, ensuring that the new task is designed in a way that creates less ergonomic risks. 

Other control measures that you could consider include the implementation of engineering control measures such as using equipment like computers, technology and software to reduce the risks associated with a particular job or task. Or using different administrative controls and procedures that will allow employees to perform their tasks more safely, and with reduced risk of causing fatigue, stress or burnout. 

But ……..can an employee be dismissed for depression? 

What if Mike has done all that is reasonably possible to eliminate and reduce ergonomic risks and  yet he still has an employee who is constantly depressed, and this is impacting on the quality of their work? 

Well, Mike can’t simply fire an employee because of their mental health. There are various steps to follow to deal with a case like this.  Let’s take the real live Court case of  Mr. Strydom who was an employee of Witzenberg Municipality and was booked off work for a period of 8 months due to a mental condition “with symptoms of post traumatic stress disorder.”  The employer held an inquiry where it was found that Mr Strydom didn’t have the capacity to perform his work duties and he was dismissed without the employer considering  whether his work could be adapted to take account of his mental health. The Labour Court held that an employer cannot simply fire an employee if they can’t perform their duties because of their mental health. It said that before dismissing an employee for incapacity, the employer has a duty to consult with the employee and to do a proper assessment to see whether their job can be adapted or whether they can be moved to another position.  

In another recent court case an employee was dismissed for misconduct because of his repeated absences from work despite medical reports confirming his depression and burnout, and recommendations that he should be given extended sick leave. The Labour Court held that the employer was well aware of the employer’s mental struggles and should have taken reasonable steps to accommodate them. The employee’s dismissal was found to be automatically unfair because the employer should have held an incapacity inquiry rather than simply dismissing the employee for misconduct. 

From all these cases, it is clear that you can’t simply dismiss an employee because of incapacity caused by mental health problems. Labour law says you have a duty to consider the nature and extent of an employee’s incapacity before dismissing them [17]. This means you need to do an investigation of an employee’s capacity to do their job, and where the employee is not capable of performing the work, you must consider how their duties can be adapted or whether more suitable alternative work is available. This must happen before you decide to dismiss the employee. And in addition, not only should there be an investigation but there should also be a formal incapacity inquiry where the employee has the opportunity to state their case in response  to the investigation before a final decision of dismissal is made.  

So where Mike has done a risk assessment of potential ergonomic risk factors and has put control measures in place to remove or reduce the effect of the risks, he has done well to comply with OHSA in creating and maintaining a work environment that is safe and protects employee physical and mental health. However, this compliance does not mean that he can just dismiss an employee on grounds of incapacity or misconduct if an employee performs their job poorly as a result of depression or other mental health problem. In this case Mike would have to follow all the legal processes for incapacity, such as doing an investigation into the extent of the employee’s capacity to do the job,  the possibility of adapting the employee’s working conditions, or the option of finding alternative work positions.  Mike must also hold an incapacity inquiry and only once he has done all of this, can he consider dismissal on grounds of incapacity due to ill health.

In conclusion

With the statistics of employee mental health and wellbeing being such a cause for concern, there is clearly a need for you to be aware of the mental stress that your employees may be faced with in your workplace. Ergonomic risk factors, including excessive work loads, disruptive hours, insufficient rest periods or repetitive, monotonous tasks, can lead to chronic fatigue, burnout, stress and other factors associated with depression. Given that these factors will only add to increases in employee absences, indecisiveness, forgetfulness and mistakes, it means they have a direct impact on business operations, profits and productivity.  Ergonomic risk management is therefore not only about being on the right side of the law, but it is also about operating in the best interests of your business supporting its long term sustainability and success.  

So be aware and mindful of the psychological costs and demands placed on your employees, and ensure open communication so that help and assistance can be offered before it is too late.