According to the SA Federation for Mental Health, about 13% of South African employees live with a diagnosed mental health condition. Globally, approximately 12-billion working days are lost each year due to anxiety and depression. 

The productivity impacts of this are profound for businesses. 

Notwithstanding this, all employees have the right to a safe and mentally healthy work environment. 

So, how do employers find the balance between creating an accepting working environment and enforcing performance metrics?

According to employment law experts from commercial law firm Cliffe Dekker Hofmeyr (CDH), employees citing mental health as a reason for poor performance, and employers alleging this, need to tread carefully. 

“Recent case law has shown that an employee alleging using mental health as a defence against poor work performance allegations must show that a mental health condition directly caused the poor work performance and that this was the primary reason for dismissal,” says CDH. 

At the same time, the firm explains that employers must take steps to reasonably accommodate employees who suffer from mental health conditions. “This includes providing training, counselling, issuing warnings and trying to find alternatives for these employees. 

“Where these steps do not yield positive results, the employer may dismiss the employee based on poor work performance. Employers must maintain proper evidence of accommodation attempts and performance management processes, which are crucial for defending dismissals for poor work performance,” says CDH.