Mental health in the workplace - Constructive dismissal based on mental ill health

Mental Health Awareness Month is observed in October and annually on 10 October we acknowledge World Mental Health Day. In the post covid landscape there has been a warranted increased awareness on mental health in the workplace.

According to employment law experts at leading law firm, Cliffe Dekker Hofmeyr (CDH), it’s important that employers are made aware of the negative mental health of an employee. “Within the context of unfair dismissal, only when an employer was aware of an employee’s mental health issues and was indifferent or showed no concern, thus making continued employment intolerable, might a proper case for constructive dismissal be made,” says CDH.  This, however, does not result in a free pass to employees suffering from mental health concerns to allege a constructive dismissal”.

Employers have a general obligation to ensure a safe and healthy working environment and prevent and/or eliminate harassment. Failure to fulfil this obligation may result in employers being held vicariously liable under section 60 of the Employment Equity Act, 1998. In the context of a constructive dismissal, this however, does not result in a free pass to employees suffering from mental health concerns to allege a constructive dismissal - the employee would still need to prove that the employer was aware or ought to have been aware of their mental health issues/illness and that such employer was indifferent.

Read the full alert here.

To arrange an interview with an Employment Law expert, please contact me directly.

Key discussion points:

• The importance of an employer, once becoming aware of mental illness or vulnerabilities suffered by an employee, showing concern.
• Employers have a general obligation to ensure a safe and healthy working environment and prevent and/or eliminate harassment against any employees with mental illnesses.
• What employers need to know about unfair dismissal with regards to mental health awareness.