1. No category

Sciknow Publications Ltd.
IJPLR 2014, 2(4):68-75
DOI: 10.12966/ijplr.12.02.2014
International Journal of Politics & Law Research
©Attribution 3.0 Unported (CC BY 3.0)
A Labour Law Perspective on Employees with Depression1
Dr. Denine Smit, and Ms Laetiti Fourie*
Faculty of Law, Department of Mercantile Law, University of the Free State, Bloemfontein, South Africa
*Corresponding author (Email: [email protected])
Abstract
Depression currently affects over 121 million people worldwide and will likely be the world‟s
second leading contributor to the global disease burden by 2020. As depression generally starts at
the average age of 25, it very often spills over into a country‟s labour force. The World Health
Organization (WHO) defines depression as „a common mental disorder that … can become
chronic or recurrent and lead to substantial impairments in an individual‟s ability to take care of his
or her everyday responsibilities‟. When this definition is compared with the criteria for „disability‟
in terms of South Africa‟s Code of Good Practice: Key Aspects on the Employment of People with
Disabilities, depression does seem to qualify as a disability in the workplace in certain
circumstances. However, through a comparative legal study of the disability-related statutes found
in the United Kingdom, including the 2010 Equality Act and the 1995 Disability Discrimination
Act, the South African legislation is found to be lacking in the extent of protection afforded to both
employees suffering from depression, and their employers. Even though the abovementioned
Code is a useful guide to promote fair treatment for people with disabilities, South Africa seems to
lack documents with sufficient force of law that are dedicated to disability and that specifically
provide for depression. Currently, depression seems to be treated as the stepchild of disability,
enjoying little official recognition as justification for illness and/or incapacity. Thus, this paper
proposes that the United Kingdom‟s legislation be used as a model to draft further statutes for
South Africa that would assist in more effectively protecting employees with depression from
unfair discrimination, while also watching over the economic interests of the employer.
Keywords - Depression, Disability, Mental Disorder/Illness, Incapacity, Dismissal, Employee,
Employer, South Africa, United Kingdom
Our Generation has had no great war, no great depression. Our war is spiritual.Our depression is our lives.Chuck Palahniuk
1. Introduction
Depression is no new phenomenon in society and forms an integral part of man‟s living and working history. Over two thousand
years ago, the Greek physician Hippocrates labelled it melancholia (Carvalheira, 2011, p.21). Twenty decades later, some 121
million people worldwide are affected by depression, and the World Health Organization (WHO) estimates that, it will likely
become the world‟s second leading contributor to the global disease burden by 2020 (McTernan, Dollard &LaMontagne, 2013, p.
321; Olson, 2011; The workplace burden of depression, 2007, p.55; WHO, 2011). Recent surveys in South Africa have found
that 27% of the population suffers from some or other form of serious depression (Tomlinson, Grimsrud, Stein, Williams &
Meyer, 2009, p.368). As depression generally starts at the average age of 25 or older (Carvalheira, 2011, p.25), the potential
impact on the labour force is cause for concern.
Both South Africa and the United Kingdom have various requirements and procedures in terms of which cases of workplace
depression are dealt with. However, while the recent commencement of the Equality Act (2010) has put the United Kingdom at
the forefront of protecting employees with disabilities, including depression, from unfair discrimination, there still seems to be
1
Parts of this article was published in Afrikaans in Litnet Academic. Available at
http://www.litnet.co.za/Article/depressie-en-die-wreld-van-werk--n-arbeidsregtelike-perspektief
International Journal of Politics & Law Research (2014) 68-75
69
various grey areas in South Africa as to whether employee depression should in fact be regarded as a disability.
This paper‟s primary aim is to strike a balance between the rights of the employee and the interests of the employer in respect
of employee mental disorders – more particularly, depression. To this end, the statutory provisions regulating the relationship
between the employer and mentally ill employees in South Africa and the United Kingdom respectively are compared in order to
assess and make recommendations on the adequacy of South African legislation in this regard.
2. Background
Research has shown depression to be the leading cause of absenteeism and low productivity (Evans-Lacko &Knapp, 2014, p.1).
Prevalence rates of major depression (DSM IV criteria) have been estimated at 6,3% in Australia, 8.3% in the United States, 2.2%
in Japan, 4.9% in the Netherlands and 3% in Germany (McTernanet al., 2013, p.322 & 324). In Europe it is estimated that
depression accounts for 7.2% of the overall disease burden with associated costs totaling around €92 billion and affecting 30
million EU citizens (Evans-Lacko& Knapp, 2014, p.1).
The current consensus of researchers is that depression arises from a combination of endogenic (internal) and exogenic
(external) factors but that he impact of depression is evident in lost productivity at work which has a substantial economic impact
on employers”. Australian research estimates that lifetime major depression in the workplace could cost Australia $AUD12.6
billion annually. Costs are inclusive of absenteeism, presenteeism2 turnover and treatment costs (McTernan et al., 2013, p.322 &
325). The costs associated with employees suffering from depression are also much higher than those of their non-depressed
colleagues (Goetzel, Ozminkowski, Sederer& Mark, 2002, p.321).Major depression has a greater negative impact on workplace
absenteeism than any other chronic, mental or physical disorder (Evans-Lacko &Knapp, 2014, p.1).In the USA, as a matter of
interest, the cost of depression in the workplace is on par with the cost of heart disease and higher than strokes (The workplace
burden of depression, 2007, p.55), which goes to show how pervasive the problem is. Every year, US employers expend over
USD$44 billion in depression-related lost productivity (Wang &Gorenstein, 2014, p.6022).
From a gender perspective it seems that men in western countries are formally diagnosed with depression at half the rate of
woman but are four times more likely to commit suicide than woman. It is a known fact that severe depression increases the risk
for suicide, but men‟s reluctance to disclose their mental illness could explain this dichotomy (Oliffe&Han, 2013, p.47).
Mentally ill people are amongst the most disadvantaged in society. Added to personal distress, they are stigmatized, often
discriminated against, marginalized and often left without recourse (Swanepoel, 2011, p.1). From the perspective of employees
with depression, unfair workplace discrimination is quite common. Employers are often prejudicial and hesitant to appoint those
with a medical history of mental disorders. Others attempt to demote or fire employees diagnosed with such a condition. As their
chances of promotion are slim, many employees often end up resigning on their own accord (Trump & Hugo, 2006, p.251 &257).
Naturally, these employees require, and are entitled to, protection from arbitrary action by employers.
However, as the employment relationship is reciprocal (Du Plessis &Fouché, 2012, p.9), the matter must also be regarded
from the employer‟s perspective. The employer seems to be supported by employees‟ implied obligation to perform duties in
which they guarantee their competence (Du Plessis &Fouché, 2012, p.21). In return, the employer must provide employees with
safe working conditions. If not, the employer may be held indirectly liable in certain circumstances in both South Africa (Du
Plessis &Fouché, 2012, p.18-19) and the United Kingdom3.
3. The South African Position with Regard to Employee Mental Disorders in the
Workplace
3.1. The statutory position of employees with depression
According to the World Health Organisation:
… depression is a common mental disorder that presents with depressed mood, loss of interest or pleasure, feelings of guilt or
low self-worth, disturbed sleep or appetite, low energy, and poor concentration. These problems can become chronic or
recurrent and lead to substantial impairments in an individual’s ability to take care of his or her everyday responsibilities. At its
worst, depression can lead to suicide (WHO, 2011).
In turn, the South African Code of Good Practice: Key Aspects on the Employment of People with Disabilities (hereinafter
„the Code on the Employment of People with Disabilities‟) 4 defines „disability‟ as (i) a physical or mental impairment 5, (ii)
2
Presenteeism is defined as being at work whilst compromising performance due to illness. Presenteeism equals 2.3 days of absenteeism on a monthly basis.
See Disability Discrimination Act, 1995, c 50, London: HMSO; Equality Act, 2006, c 3, London: HMSO.
4
Promulgated in terms of the Employment Equity Act 55 of 1998.
5
Physical impairment‟ being a partial or total loss of a bodily function or part of the body, and „mental impairment‟ a clinically recognised condition or illness
that affects thought processes, judgment or emotions; see item 5.1.2 of the Code.
3
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International Journal of Politics & Law Research (2014) 68-75
which is long-term6or recurring7, and (iii) substantially limits prospects of both entry into, and advancement in, employment. It
follows, then, that depression could meet the requirements of a „disability‟, and that those suffering from this mental illness may
qualify as persons with disabilities.
Several laws and codes of good practice8 have been promulgated to protect employees from discrimination on grounds of
disability. Section 9 of the Constitution of the Republic of South Africa (No. 108 of 1996; hereinafter „the Constitution‟)
provides that no person may be unfairly discriminated against,9 inter alia on the grounds of disability, with section 6(1) of the
Employment Equity Act (No. 55 of 1998) echoing this, though specifically in respect of employees.
Section 23(1) of the Constitution also provides that everyone has the right to fair labour practices. South Africa‟s
comprehensive labour laws contain clear guidelines to which employers must adhere in terms of „reasonable accommodation‟
and dismissal of employees with disabilities. These guidelines are clearly stipulated in schedule 8 to the Code of Good Practice:
Dismissal.10Further guidelines for the reasonable accommodation of employees with disabilities or serious illnesses and injuries
are contained in the Commission for Conciliation, Mediation and Arbitration‟s information sheet Ill-health or injury(CCMA,
2002) as well as the Code on the Employment of People with Disabilities.
According to the latter Code,11the requirement of reasonable accommodation pertains to both prospective and existing
employees with physical and/or mental disabilities, and applies to (i) the recruitment and selection process, (ii) the work
environment, (iii) the regular performance, assessment and remuneration of work, and (iv) awarding benefits and privileges upon
appointment. The Code12 goes on to say that this duty of reasonable accommodation may arise when an applicant or employee
voluntarily discloses a disability-related accommodation need, or when such a need is reasonably self-evident to the employer.
However, the duty of disclosure seems unclear. The South African government‟s Technical Assistance Guidelines on the
Employment of People with Disabilities (TAG) (Department of Labour, 2003, p. 51) state that if the employee with the disability
chooses not to disclose it, and it is not reasonably self-evident, the employer is not obliged to provide reasonable accommodation.
The Code, on the other hand, is silent in this regard. It has however been found in Spero v Elvey International (PTY)Ltd 13 that
even where the applicant took an overdose of psychiatric medication, it was insufficient to dismiss him based upon his seizures
created by himself due to the abuse of prescribed medication in an attempt to overcome his depression. It was found that the
employer had to have at least tendered alternatives, i.e. making reasonable accommodation for him, since his depression was
found to be only temporary.14
Nevertheless, to qualify for either temporary or permanent reasonable accommodation,15the job applicant with depression
must meet the definition of a person with a disability, as outlined above. Even though each case will have to be adjudicated on
merit, depression will only be regarded as a disability if it substantially limits an employee‟s ability to perform his/her day-to-day
duties and if, in the absence of reasonable accommodation by the employer, such person will be unable to do the job, or will find
it very difficult.16
Employees who present with depression after employment are dealt with differently. The prescripts and procedures that
employers are expected to follow before employees may be dismissed on grounds of disability are statutorily regulated (Grogan,
2007, p. 420).17 The Labour Relations Act recognises three grounds for valid termination of employment, namely misconduct,
incapacity and operational requirements (Khosa, 2010), provided that the process is procedurally and substantively fair (Du
Plessis &Fouché, 2012, p. 288). Dismissal may only follow after the audialterampartem principle has been adhered to and
reasonable accommodation has been created for the employee with depression. At no stage may the employee be discriminated
against based on his/her condition.
However, in view of the high costs associated with absenteeism and the imperative to create a safe working environment for
the remaining employees, no employer will be able to indefinitely accommodate an employee who does not perform, fails to
show up for work or delivers substandard work due to depression. As reasonable accommodation places a burden on the
employer, it is important to establish its boundaries so that it is not unlimited. Therefore, the test for fairness and proportionality
as provided for in sections 9 and 36 of the Constitution equally applies when establishing whether or not the reasonable
accommodation is disproportionately burdening the employer (Pretorius, Klinck&Ngwena, 2012, p. 7-7,7-8).
6
If it persists for at least 12 months; see item 5.1.1(i) of the Code.
Likely to happen again and to be substantially limiting, including a constant chronic condition, even it its effects fluctuate; see item 5.1.1(ii) of the Code.
8
Such as the Code of Good Practice: Key Aspects on the Employment of People with Disabilities, and the Code of Good Practice: Dismissal.
9
For further information in this regard refer to Section 10 of the Mental Health Care Act 17 of 2002 which confirms the anti-discrimination clause on the
grounds of a person‟s mental health status.
10
Promulgated in terms of the Labour Relations Act 66 of 1995. See item 10(1), „Incapacity: Ill health or injury‟.
11
Item 6.3.
12
Item 6.4.
13
1995 16 ILJ 1210 (IC):1210.
14
Spero v Elvey International (PTY) LTD (1995) 16 ILJ 1210 (IC): 1212, 1217, 1219.
15
Item 6.8.
16
Item 5.1.3 read together with item 6.
17
See SAMWU obo Mjobo v Lukhanji Municipality 2010 JOL 25131 (SALGBC).
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International Journal of Politics & Law Research (2014) 68-75
71
3.2. The statutory position of the employer, and grounds for dismissal of employees with depression
The employee with depression is of course not the only person affected by the condition. It also affects co-workers and,
ultimately, the employer, for these reasons: Depression impedes a person‟s ability to cope with daily problems, and renders the
sufferer‟s productivity considerably lower than that of co-workers (Costello, 1993, p. 113-116). Employees who suffer from
depression are also often absent from work, which makes it difficult for the employer to remain sympathetic and supportive,
especially where the employee concerned has chosen not to inform the employer of the problem (Olson, 2008).
The first option available to such employers is to dismiss the employee on grounds of physical or mental incapacity (Du
Plessis &Fouché, 2012, p. 292). The Code of Good Practice: Dismissal contains a number of guidelines to be considered before
an employee may be fairly dismissed on grounds of ill health or injuries. The first is to assess the employee‟s (in)ability to
perform the work. Secondly, it needs to be established whether the current working environment or duties can be adapted. Finally,
the employer is expected to determine whether suitable alternative employment is available in the business.18
On the question of whether incapacity is temporary or permanent, the extent and duration of the incapacity as well as all
alternatives should be explored before a decision is made to dismiss the employee.19 Even though stress may also be work-related
and may cause depression, some labour tribunals regard only depression as grounds for incapacity.20In IMATU & Another v City
of Cape Town,21however, depression was viewed as a treatable and thus temporary illness, which must be substantially limiting
in order to qualify as a form of incapacity. On the other hand, authors such as Basson believe that depression and stress may
indeed be severe enough to lead to a finding of mental incapacity (Carvalheira, 2011, p. 18). In Naidoo v Old Mutual Healthcare
(Pty) Ltd,22depression was dealt with as a form of incapacity due to ill health, while in Rikhotso v MEC for Education,23it was
acknowledged that stress may lead to medical incapacity. However, the court in Rikhotso also confirmed that treated mental
illnesses can at most lead to temporary incapacity, as a person who is correctly medicated is still able to perform his/her duties
(Carvalheira, 2011, p. 39). Thus, it seems that the legal position in South Africa regarding employees who are being treated for a
mental disorder, yet are still able to perform work, albeit in a lesser capacity, is far from clear-cut.
The second option available to employers is dismissal based on absenteeism. For a business to be economically successful, it
is vital that production continues at an acceptable rate without incurring additional costs. The physical and emotional presence of
employees is critical to achieve these goals. Employee absence may have an enormously negative impact on a company‟s already
strained budget, and is regarded as one of the highest hidden company costs. The 2002 Public Service Commission report
indicated that work absence for the period 1999-2000 had cost the government R631 million in sick leave (Parbhoo, 2010). In a
study conducted by AIC Insurance in 2009, it was found that absenteeism costs the country‟s economy up to R12 billion per year
(Shamos, 2009, p. 92).
In establishing the reasonableness of the employee‟s absence, factors to be taken into account include the period of absence,
whether it is permanent or temporary, the prominence of the employee‟s position, the employee‟s length of service, the ease with
which the employee can be temporarily replaced, the employer‟s financial ability to effect such a replacement, the employee‟s
chances of recovery, as well as the effect of the employee‟s absence on other employees. Should it become evident that the
employee is permanently incapacitated, the employer is not expected to retain his/her services (Grogan, 2009, p. 267). This
position was confirmed in Free State Consolidated Gold Mines (operations) Bpk h/a Western Holdings Goudmyn v
Labuschagne.24 In the matter Hendricks v Mercantile & General Reinsurance Co of SA Ltd,25 the court also held that an
employer is entitled to dismiss an employee on grounds of incapacity if the employee is continuously absent from work due to ill
health (Parbhoo, 2010).
4. The United Kingdom Position with Regard to Employee Mental Disorders in the
Workplace
4.1. The statutory position of employees with depression
One in four adults in the United Kingdom – a total of seven million people – will experience depression in their lifetime (Time to
Change, 2008a). Employees with disabilities are protected by the 2010 Equality Act. This act consolidates (Time to Change,
2008b) the legal prescripts found in the Disability Discrimination Act 26 the Race Relations Act27 and the Sex Discrimination
18
IMATU obo Strydom vs Witzenberg Municipality 2012 33 ILJ 1081 LAC: 1082.
Item 10 and 11 of the Code of Good Practice: Dismissal.
Strydom v Witzenberg Municipality 2008 JOL 22007 (LC).
21
2005 11 BLLR 1084 (LC).
22
2004 Arbitration Award Case no WE8760-03.
23
2005 3 BLLR 278 (LC).
24
1999 20 ILJ 2823 (LAC) at 2824.
25
1994 15 ILJ 304 (LAC).
26
Disability Discrimination Act, 1995, c 50, London: HMSO.
27
Race Relations Act, 1976, c 74, London: HMSO.
19
20
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International Journal of Politics & Law Research (2014) 68-75
Act.28 The 2010 Equality Act took effect on 1 October 2010, and any matters predating its commencement are dealt with under
the previous legislation.
Briefly, employees with disabilities may not be treated differently to their peers, but must at the same time be reasonably
accommodated, either in terms of work or environment, if they are substantially impaired by their disability (Morton Fraser
Solicitors, 2012). The nature, extent and, particularly, the effect of the illness on the employee seem to be decisive for the
protection afforded under the Equality Act. The 1995 Disability Discrimination Act contained a list of measures regarding the
effect of illness for purposes of determining its general impact on the person. This list has been omitted from the 2010 Equality
Act, which could be interpreted as affording greater freedom to take a decision on the incapacity of employees. However, the
Equality Act still deals with psychological disabilities such as depression.
United Kingdom laws extensively provide for the protection of persons with disabilities by means of nine different pieces of
legislation prohibiting discrimination, as well as approximately 100 statutory instruments that stipulate connected rules and
regulations (Keen &Oulton, 2009, p. 11). One such law is the 2006 Equality Act,29 which still applies to matters predating the
commencement of the 2010 Equality Act, with specific reference to section 8(3), which provides that in order to create equal
opportunities for persons with disabilities, these persons may in certain cases receive preferential treatment. This position seems
to have been retained in the new Equality Act (Mind, 2013).
Therefore, in order to determine the extent of the legal protection afforded, the statutory meaning of „disability‟ needs to be
established. Section 6(1) of the 2010 Equality Act and section 1 of the Disability Discrimination Act provide as follows: „A
person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse
effect on P‟s ability to carry out normal day-to-day activities.‟ From this definition, it appears that four facts need to be
ascertained to determine whether a person can be regarded as a person with a disability in terms of the law: Firstly, it needs to be
established whether the person has an impairment of a physical or mental nature. Secondly, it must be ascertained whether the
impairment has an adverse effect on the person‟s ability to perform normal, day-to-day activities. Thirdly, the substantiality of
the adverse effect needs to be established. Finally, it needs to be determined whether the impairment is long-term (Keen &Oulton,
2009, p. 16).
Therefore, when compared with the World Health Organisation‟s definition of depression cited earlier, it is evident that
depression meets the criteria for a disability as contained in the Disability Discrimination Act 30 and the 2010 Equality Act.31 The
latter two acts go beyond that, however, and also offer protection to persons who previously suffered from a disability such as
depression.32 That means that those previously affected by a disability, even prior to the commencement of the act, 33 still enjoy
legal protection, provided that the disability concerned meets the statutory requirements mentioned above (Keen &Oulton, 2009,
p. 18)34
4.2. The statutory position of the employer, and grounds for dismissal of employees with depression
Often, depression causes a change in employee performance and conduct. These changes include decreased or inconsistent
productivity, absenteeism, untidiness, frequent absence from the work station, an increase in errors and diminished work quality,
non-adherence to deadlines, social withdrawal from co-workers, overly sensitive or emotional reactions, disinterest in the work,
learning or memory problems, delayed movements and actions, or frequent comments about fatigue, and are often used as
grounds to justify discriminatory action by employers (Cox, Ness & Carlson, 2008).
In order to establish whether disability-related discrimination indeed occurred, the following has to be investigated: the
reason for the unfavourable treatment; whether this reason related to the person‟s disability; whether the treatment was less
favourable than that of a person to whom this reason does/did not apply, and, if so, whether such treatment was justifiable (Keen
&Oulton, 2009, p. 160). It is imperative to determine precisely why the employee was reprimanded (Aspen Publishers, 2009, p.
3), which generally entails a purely factual question (Keen &Oulton, 2009, p. 165).
Of paramount importance, however, is whether the employer is able to provide sufficient justification for his/her actions
towards the person with the disability (Keen &Oulton, 2009, p. 170). In the matter London Borough of Lewisham v Malcolm,35
the House of Lords held that justification for the employer‟s actions is only required in cases of indirect discrimination, which
implies that direct discrimination would automatically be regarded as unfair. In cases of indirect discrimination, the employer
must be able to prove that the reasons for the discriminatory treatment were both relevant and substantial in the particular
circumstances. The employer may only apply this justification if he/she had taken reasonable steps to accommodate the person,
except where the action would be justifiable even if the employer had failed to do so (Keen &Oulton, 2009, p. 170,171). “The
28
Sex Discrimination Act, 1975, c 65, London: HMSO.
Equality Act, 2006, c 3, London: HMSO.
30
Section 1, read in conjunction with schedule 1.
31
Section 6, read in conjunction with schedule 1.
32
See section 6(4) of the 2010 Equality Act.
33
Section 6(4) and paragraph 9 of the schedule to the 2010 Equality Act; section 2 of the Disability Discrimination Act.
34
Paragraph A16 of the 2010 Equality Act Guidance.
35
2008 4 All ER 525 HL, par 114.
29
International Journal of Politics & Law Research (2014) 68-75
73
duty to make a reasonable adjustment expects an employer to view the employee‟s position in a positive and creative way and
with a purposive approach to enable reasonable adjustments to be implemented”.36
Recent judgements further indicate that the obligation of reasonable accommodation of the employee must be carried out
„within a timely manner‟, which implies that employers must avoid unreasonable delays (Walsh, 2013, p. 12).37 In this regard, it
must be kept in mind that the employer may not be disproportionately burdened in order to provide an employee with reasonable
accommodation (Fraser Butlin, 2011, p. 436). Also, an employer cannot be expected to take steps in order to provide reasonable
accommodation if he/she has not been informed of the employee‟s disability, in which case the issue of justification for the
employer‟s actions, will not be contested.38
In the United Kingdom, health and safety regulations, for example, have been shown to be justifiable grounds for dismissal.
Health and safety regulations compel employers to guarantee a safe and healthy working environment for their employees as far
as reasonably possible. This obligation requires the employer to assess the health and safety risks of each employee in the
workplace, and to implement measures in order to limit these risks to an absolute minimum. Clearly, therefore, this obligation
could lead to less favourable treatment of certain employees due to the increased risk they pose to others. The question is whether
such treatment is justifiable or not. This is decided by the nature of the obligation: If the obligation is absolute, employees‟ health
and safety must come first. This principle was illustrated in Lane Group & North Somerset Council v Farmiloe.39 In this case, as
the claimant‟s skin condition made it impossible for him to wear the protective footwear required by his position, the employer
made an exception specifically for him. However, the local health and safety inspector compelled the employer to reverse the
exception and, as there was no alternative position available for the claimant, he was dismissed (Keen &Oulton, 2009. p. 174).
5. Comparative Law Remarks
As members of the International Labour Organisation (ILO) and the United Nations (UN), both South Africa and the United
Kingdom subscribe and attempt to adhere to these bodies‟ guidelines regarding disability (Carvalheira, 2011, p. 7). The
International Labour Organisation and the United Nations both view depression, being a form of „disability‟, as a major problem
(Carvalheira, 2011, p. 110).
Even though South African law is founded on that of the United Kingdom, South Africa remains but a developing country
with various lacunae in its laws and regulations. South Africa‟s best attempt thus far at addressing these lacunae in respect of the
growing problem of depression/disability in the workplace is the Employment Equity Act (Carvalheira, 2011, p. 8) and the Code
on the Employment of People with Disabilities, which strive to define disability. Further attempts at protecting employees with
disabilities are contained in the provisions of the Constitution, the Labour Relations Act (No. 66 of 1995) and the Code of Good
Practice: Dismissal40. All these statutory instruments protect the employee from unfair discrimination on grounds of disability,
and ensure that fair labour practices are implemented in the workplace.
However, the concern is that it is not clear whether depression, in all its various forms, is adequately provided for in all
existing South African legislation. Depression seems to be treated as the stepchild of disability in South Africa, and enjoys little
recognition as justification for illness and/or incapacity.
Unlike South Africa, the United Kingdom seems to take a much more comprehensive approach, and consequently offers a
much broader extent of protection to employees with „disabilities‟, including depression. The recent commencement of the
United Kingdom‟s 2010 Equality Act along with the 2010 Equality Act Guidance clearly proves that this country truly strives to
adhere to the objectives of the United Nations and International Labour Organisation, and consequently takes the lead in this
field.
On closer examination, the definition for „disability‟ found in the 2010 Equality Act 41and the Disability Discrimination Act42
is similar to the definition contained in South Africa‟s Employment Equity Act and the Code on the Employment of People with
Disabilities. It would therefore seem as if employees with disabilities in the two countries are afforded the same protection,
provided that depression is of course regarded as a disability, which is one of the areas where the South African legal position
needs clarification.
South African legislation offers employers a number of grounds for dismissal where it is no longer possible to retain
employees with disabilities. Very specific provision is made for, for example, cases where the employee is mentally or physically
incapacitated or continuously fails to attend work. The United Kingdom legislation, on the other hand, is less specific in this
regard, which allows a much broader spectrum of potential grounds for dismissal than South African law. For the employer to be
36
N vs N [2014] WL 1097062 EWCA Civ314: par 58.
Also see Duckworth v British Airways ET/3304740/11.
38
See paragraph 20(1) of part 3, schedule 8 to the 2010 Equality Act.
39
UKEAT [0352/03 and 0357/03].
40
As contained in schedule 8 to the Labour Relations Act.
41
With regard to matters after 1 October 2010.
42
With regard to matters predating 1 October 2010.
37
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International Journal of Politics & Law Research (2014) 68-75
able to rely on the stipulated grounds, both countries‟ legislation requires the employer to have had taken steps to provide the
employee with reasonable accommodation. However, the two legal systems agree that reasonable accommodation may not place
a disproportionate burden on the employer, and must therefore be reasonable in the particular circumstances.
But possibly the most significant lacuna in South African legislation compared to that of the United Kingdom is this: Even
though depression may be classified as a disability in terms of the definition contained in the Employment Equity Act, South
Africa has no concrete legislation dedicated to disability/incapacity like that found in the United Kingdom. The Code on the
Employment of People with Disabilities merely serves as a guideline. It is therefore argued that South African legislation is
lacking in this regard, and fails to meet the objectives of the United Nations and International Labour Organisation.
6. Conclusion and Recommendations
As indicated earlier, depression may indeed in some cases be regarded as a disability in terms of South African law. However,
this must be seen against the United Kingdom legislation, which unequivocally caters for depression and other psychological
disorders in the workplace, which in turn simplifies matters in dealing with these conditions among employees.
It is argued that no South African legislation fully covers depression and discrimination in the workplace, as there seems to be
no clear-cut category under which depression falls. The Code on the Employment of People with Disabilities only defines
incapacity once depression as such has been diagnosed by a medical practitioner. The value of the Code is therefore not
substantial enough to effectively deal with depression in the workplace, and, as it does not enjoy the status of legislation, it
merely serves as a guideline. The Technical Assistance Guidelines issued by the Department of Labour (2003) are equally
inadequate to have the force of law in South Africa. It is thus proposed that the legislation of the United Kingdom serve as model
for the drafting of further legislation in South Africa.
Ignorance regarding depression continues to prevail in the workplace (The workplace burden of depression, 2007, p. 55). But,
as depression remains one of the major illnesses of our time (Depression in the workplace, 2008, p. 25), knowledge about it needs
to be widely shared. In the absence of clear legislation, and in the hope that it will indeed follow, South African employers can
play a proactive role by utilising available resources to assist employees in the recovery process, for example by implementing
mental health support programmes or employee assistance programmes in the workplace, which would eventually reduce
health-related costs as well as work days lost, and could bring about considerable cost savings (Thurston, 2007). Improving
workplace attitudes and providing an environment in which an employee can comfortably disclose their depression seems to be
the best way toward improving social acceptance of employees with depression (Evans-Lacko& Knapp, 2014, p. 9). Equally
important, however, is to remember that the employer cannot be held solely responsible for these mental illnesses among staff,
but that employees are responsible to participate and make use of the assistance offered by the employer.
In the second century before Christ, the famous orator Cicero remarked that no statute is supreme, but that the good of the people
should be the supreme law. Acknowledging that depression is no longer only a social problem, but has found its way into the
legal domain as well, the time has come to promulgate new, appropriate legislation in order to protect employees who suffer from
depression, while simultaneously watching over the economic interests of the employer.
References
Aspen Publishers (2009). IBI Research Examines Relationship between Depression, Disability and Productivity. Managed Care Outlook, 22(13), 2–6.
Carvalheira, R. (2011). Depression, Dismissals and Disability.Retrieved April 09, 2013 from http://wiredspace.wits.ac.za.
Costello, C.G. (1993).Symptoms of depression. United States of America: John Wiley & Sons Inc.
Council for Conciliation, Mediation and Arbitration (CCMA) (2002) Ill-health or injury.Informationsheet.Retrieved October 03, 2012 fromwww.ccma.org.za.
Cox, A.A., Ness, M.K.,& Carlson, R.F. (2008).Depression in the workplace.Retrieved October 30, 2012 from
http://counselingoutfitters.com/vistas/vistas08/Cox.htm.
Department of Labour (2003) Technical Assistance Guidelines on the Employment of People with Disabilities (TAG). Pretoria, South Africa: 51 Retrieved April,
10 2013 from http://www.workinfo.com/free/sub_for_legres/data/equity/DisabilityTAG.pdf.
Depression in the workplace is associated with high indirect costs related to absenteeism and impaired performance. (2008). Drugs and Therapy Perspectives,
24(6), 23–26.
Du Plessis, J.V., &. FouchéM, A .(2012). A Practical Guide to Labour Law.(7th edn). Durban: LexisNexis.
Evans-Lacko, S.,& Knapp, M. (2014). Importance of social and cultural factors for attitudes, disclosure and time off work for depression: Findings from a seven
country European study on depression in the workplace, PLOS ONE, 9(3), e91053:1-9.
Fraser Butlin, S. (2011). The UN Convention on the Rights of Persons with Disabilities: Does the Equality Act 2010 Measure up to UK International
Commitments? Industrial Law Journal, 40(4), 428–438.
Goetzel, R.Z., Ozminkowski, R.J., Sederer, L.I., & Mark, T.L. (2002). The Business case for Quality Mental Health Services: Why Employers Should Care
About the Mental Health and Well-Being of their employees. Journal of Occupational and Environmental Medicine ,44(4),320-330.
Grogan, J. (2007). Dismissal, Discrimination & Unfair Labour Practices.(2nd edn). Cape Town: Juta.
Grogan, J. (2009).Workplace Law.(10th edn). Cape Town: Juta.
Keen, S., &Oulton, R. (2009). Disability Discrimination in Employment. Oxford: Oxford University Press.
Khosa, D. (2010) Dismissal as a result of ill-health.Retrieved April, 04 2013 from http://www.legalinfo.co.za.
McTernan, W.P., Dollard, M.F., &LaMontagne, A.D. (2013) Depression in the workplace: An economic cost analysis of depression-related productivity loss
attributable to job strain and bullying. Work & Stress: An International Journal of Work, Health &Organisations, 27(4), 321-388.
International Journal of Politics & Law Research (2014) 68-75
75
Mind (2013). Disability discrimination: Legal briefing. Retrieved April, 09 2013 from
http://www.mind.org.uk/mental_health_a-z/8069_disability_discrimination-legal_briefing.
Morton Fraser Solicitors (2012) Depression and your employment rights. Retrieved April, 11 2013 from
http://www.morton-fraser.com/publications/factsheets/3035.
Oliffe, J.L.,& Han, C.S.E. (2013). Beyond Worker‟s Compensation: Men‟s Mental Health In and Out of Work. American Journal of Men’s Health, 8(1), 45-53.
Olson J. (2011). Depression in the workplace.Retrieved August 30, 2012 from http://www.surfacefabrication.com.
Parbhoo, S. (2010). Why worry about absenteeism in the workplace? Retrieved October, 24 2012 from http://www.legalinfo.co.za.
Pretorius, J.L., Klinck, M.E.,&Ngwena, C.G. (2012) Employment Equity Law.Service Issue 12 (July). Durban: LexisNexis.
Shamos, J. (2009). Money makes the world go round, and the mind feel happy - the high emotional cost of SA‟s financial crisis. African Journal of Psychiatry,
12(1), 91-92.
Swanepoel, M. (2011). Human Rights that Influence the Mentally Ill patient in South African Medical Law: A discussion of Sections 9;27;30 and 31 of the
Constitution. PELJ, 14(7), 1-20.
The workplace burden of depression – there are direct correlations between depression, absenteeism and decreased productivity. (2007). SA Pharmaceutical
Journal74(9), 55.
Thurston, L.D. (2007). Depression to be No. 1 cause of disability in the workplace in P.R. by 2010.‟Caribbean Business Labor, 25 October 2007: 43.
Time to Change.(2008a) Mental Health Statistics.Retrieved April, 09 2013 from http://www.time-to-change.org.uk/mental-health-statistics-facts.
Time to Change. (2008b) What are my rights. Retrieved April, 09 2013
fromhttp://www.time-to-change.org.uk/your-organisation/support-workplace/where-do-i-stand.
Tomlinson, M., Grimsrud, A.T., Stein, D.J., Williams, D.R., & Meyer, L. (2009). The epidemiology of major depression in South Africa: Results from the South
African Stress and Health Study. South African Medical Journal, 99(5): 368–373.
Trump, L.,&Hugo, C. (2006).The barriers preventing effective treatment of South African patients with mental health problems.South African Psychiatric
Review, 9, 249–260.
Walsh, K. (2013).A ticking clock. Occupational Health, 65(1), 12-13.
Wang ,Y.P.,&Gorenstein, C. (2014).Attitude and Impact of Perceived Depression in the Workplace.International Journal of Environmental Research and Public
Health, 11, 6021-6036.
World Health Organisation (WHO). (2011). Depression: definition. Retrieved October 03, 2012 from
http://www.who.int/mental_health/management/depression/en/index.html.