The mental health of employees must feature prominently on corporate agendas in a Covid-19/post-Covid-19 world, says Yeleni Bruinders, senior associate at law firm Bowmans. 

There has been “an exponential increase in depression and anxiety” since the first Covid-19 lockdown, Bruinders said. “I have had three or four Covid-related cases where people are struggling because of poor performance or they are actually not coping and have asked their employer for time off to try and navigate it and try to deal with it appropriately. I realised that the mental health crisis is far more pressing than I had initially thought. A large number of individuals are struggling with working from home, juggling the work/life balance — and some are starting to reach Covid burnout.” 

The surge in mental health cases in the workplace calls for a more vigilant approach to complaints about poor performance, Bruinders said. “When somebody speaks to me about a poor performer, I ask questions that I might not have asked before: What is their background? Have they spoken about any challenges during Covid? If you don’t act appropriately, your action could be deemed unfair. With the increase in pressures because of Covid, individuals are starting to talk about mental health issues more”. 

Elna van Wyk, head of Claims: Group Risk for Momentum Corporate, said: “Covid has definitely exacerbated the pressure. Operationally, companies are struggling to keep their heads above water, so when somebody resigns they will not replace them and they will expect operations to continue as normal and then people can’t keep up”. 

Michael Yeates, director of employment practices for the commercial law firm Cliffe Dekker Hofmeyr, said: “There has been a significant increase in mental health cases. I think the majority will most likely be depression related to Covid, and obviously associated with mental health would be substance abuse cases as well. Some employees find it stressful to work from home because they don’t have the sense of security they have in the workplace – and because supervision is not there”. 

Professor Stoffel Grobler, a public health psychiatrist who takes on independent psychiatric assessments for insurance companies in his private practice, says employers must face up to the facts: one in 10 people suffers from depression and one in five from an anxiety disorder. A study by the London School of Economics found that 4.2% of South Africa’s GDP (about R226-billion) is spent on “presenteeism” — depressed employees who are present but not fully functional.

Early detection and appropriate support are critical, Grobler says. “By the time I see them, their medical aids are depleted, their disability payment hasn’t kicked in yet and their salary has stopped,” he said. “The people who see me are petrified because nobody explains to them why they have to see an independent medical examiner or assessor. They are lost, adrift at sea, and nobody is talking to each other and nobody is talking to the claimant either,” he said. 

“The longer an employee is out of work the less likely his/her chances are of living a productive life,” Grobler said. “If you look at the research, if a person is off work for 20 days, the chance of ever getting back to work is 70%. If a person is out of work for six months, only about 15% will return to work. It takes nine months for people to see me and we know that already only 15% will be able to return to work after that.”

Grobler, who sees about six claimants a month, says Covid has created great uncertainty for insurers, who are seeing an increase in claims. “Covid is a dragon with a very long tail,” he said.

He estimates that 8% to 20% of South African insurers’ claims are mental health-related and another 20% are related to muscular-skeletal (lower back pain), and “there is a huge grey area between the two”. According to Grobler, people who suffer from lower back problems often have common mental health disorders such as depression or anxiety.

Van Wyk said Covid has exacerbated trends that already existed. “If you look at our stats from 2014-2020, about 9% of all claims we submit are a result of a mental illness.” Most mental health claims are for people below the age of 35. 

In the financial year for 2020, 26% of Momentum Corporate’s successful claims related to mental health issues in people below the age of 35. Mental health claims are expected to increase even more “with the economy, the pressures, and the fact that social interaction is not the way that it was”.

One of the challenges from a legal perspective, Bruinders said, is that employers follow a standard improvement plan. “Obviously, if the underlying reason for a person’s poor performance is a mental disease or mental disorder, then providing them with additional training is not actually going to fix the underlying issue,” she said. “What you are required to do in terms of our law is to deal with depression as a form of ill health.” This involves investigating the matter to see if the employee is permanently or temporarily incapacitated and then seeing if they can reasonably be accommodated. 

“You can’t dismiss them without exploring all alternatives short of dismissal, such as reducing working hours, looking to introduce flexible working hours and potentially amending their job title and role and splitting up their role and dividing it between individuals in the business who are willing and able to take on more work,” she said. Although this may not always be structurally or financially feasible, all options must be explored. 

Raising awareness, eliminating stigma, early detection and training were emphasised by all interviewees. 

“There is absolutely a need for more education in the workplace. I would say that an employer can benefit a lot by having a mental health policy in the workplace, not just from a wellness perspective, but also how to manage mental health. These are the essential elements that all employers now have to incorporate into their daily business… Covid isn’t going away anytime soon, but irrespective of Covid, the workplace has undergone a dramatic change, particularly in situations where employees are now required to work from home,” Yeates said. 

“We encourage early intervention,” Van Wyk said. “We train line managers on how to identify somebody who might need help and we are partnering with a company that is developing an app based on cognitive behavioural therapy. It is a treatment app that allows you to identify symptoms by asking questions. It has a triaging function and will recommend a counsellor if that is what you need.” 

Grobler and his occupational therapist wife have imported a programme from the UK to educate and empower line managers. 

Bruinders said employers must demonstrate that an employee’s wellness, including their mental well-being, is influential on the operation of the business so that the business as a whole can run at an optimal level. Paying attention to mental health needs to be “at the forefront of business culture,” she said.

Cliffe Dekker Hofmeyr acted on behalf of Ockert Jansen, a paralegal who was dismissed by Legal Aid SA. Gillian Lumb, the lawyer representing Jansen, said he suffered from depression, went through the employee wellness programme and was professionally assisted. At some point, he acted out of character and was dismissed for misconduct relating to absenteeism and insubordination.

In 2018, claims for unfair dismissal under the Labour Relations Act and for discrimination under the Employment Equity Act were successful and he was reinstated and compensated. Subsequently, in July 2020, Legal Aid SA appealed and was successful before the Labour Appeal Court, which found that despite his depression, Jansen was “relatively capable and knowingly conducted himself in contravention of the rules of the workplace”. Cliffe Dekker Hofmeyr has appealed to the Constitutional Court and is awaiting the outcome. 

“The reason we are referring this to the Constitutional Court,” Lumb said, “is that the Appeal Court judgment seems to set the bar very high for people suffering from mental disability to prove that their dismissal is unfair. We believe this is a public interest issue. Our argument is that the Labour Appeal Court has put the onus on the employee to establish the reason for their dismissal, but the onus is normally on the employer to prove that dismissal was fair.”

“There is an increasing number of employees who are suffering from depression and burnout, and obviously with Covid the circumstances have escalated,” Lumb said. “This case is being watched very carefully. If the Constitutional Court does look at it, it will be a very important judgment for employers and employees”. DM