In an unfair discrimination dispute on the basis of an employee’s mental health condition the employer may defeat the employee’s claim by successfully raising any of the following defences:

  • The employer may firstly prove that the alleged discrimination based on mental health did not in fact amount to discrimination. In order to achieve this, the employer will have to prove that the actions did not impair the employee’s fundamental human dignity. The employer may also prove that the discriminatory action was not unfair.

In the context of mental health conditions, arguably the most significant defence that an employer may raise against an employee’s unfair discrimination claim is that the discrimination was justified because it related to an inherent requirement of the job. If an employee’s mental health condition will inhibit him or her from discharging the inherent requirements of the job, the employer will not be obligated to employ or retain that employee. Reasonable accommodation will also play a role in this assessment. If the individual with a mental health condition is a beneficiary of reasonable accommodation, the employee must be able to discharge the inherent requirements of the job with or without such reasonable accommodation. If with reasonable accommodation, the person is still unable to perform these essential functions, the employer will not be obligated to employ or retain the individual.


For more information on labour law advice or services. Please feel free to contact us at Cape Labour Consultants and we will gladly assist you. Cape Labour & Industrial Consultants is a Cape Town-based providing Labour Law (Industrial Relations) and advice to employers and employees across all market segments and industries since 1987.

For more information or to Contact Cape Labour. You can find all of our relevant details here.

W.Tel no.: 021-423-3959