Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
One category of employees who are well protected under the Employment Equity Act (EEA) is those who are ill or injured. Employers cannot mistreat employees who are ill or injured. If they do, they risk serious consequences. This reality highlights the hidden cost of mistreating ill employees.
Furthermore, when a genuine illness prevents an employee from performing properly, the employer must accommodate them. Specifically, the employer must adjust job tasks, grant sick leave and provide assistance. In addition, the employer must implement any other appropriate support measures.
Balancing operational needs and employee welfare
While the law allows employers to consider operational needs, it treats these needs as secondary to employee welfare. Consequently, employers must recognise the hidden cost of mistreating ill employees. However, sick employees may struggle to perform at full capacity. As a result, productivity and profits may decline.
Employers often respond by considering ill-health retirement. While this option is not inherently illegal, it requires strict procedural compliance.
Before boarding an employee, the employer must follow several legal steps. One key requirement involves obtaining a medical report that justifies the decision. However, section 7 of EEA limits medical testing. It allows testing only when it is justifiable under specific circumstances. These circumstances include medical facts, employment conditions and the inherent requirements of the job.
This creates a practical challenge. Employers must determine whether they can require testing by their own medical experts. If they mishandle this process, they expose themselves to the hidden cost of mistreating ill employees.
Legal risks and case law insights
Employers who ignore the EEA’s provisions face significant legal risk. In Solidarity obo Nel vs National Metrology Institute of South Africa (SAFLII – 202744/2025) [2026] ZALCJHB 6 (5 January 2026), the court examined this issue closely. The employee had been diagnosed with autism and major depressive disorder by his therapists. One assessment even warned of a possible suicide risk.
Although the employer implemented some accommodative measures, it refused to implement further ones. Instead, it required additional medical testing to assess whether boarding was appropriate. However, the Labour Court rejected this approach. The employer failed to explain why the existing medical assessments were insufficient.
Consequently, the court ruled against further testing. It also ordered the employer to create a work environment that supports the employee’s health. In addition, the court interdicted the employer from engaging in harassment, coercion or victimisation linked to the employee’s disability. This case clearly illustrates the hidden cost of mistreating ill employees.
Training and prevention strategies
Although many established employers understand that ill employees are protected, some still attempt to bypass legal requirements. This approach creates unnecessary legal exposure. Therefore, proper training on the consequences of such actions is essential. It can significantly reduce the risk of adverse Labour Court outcomes. While training may require time and financial investment, the benefits outweigh the costs.
In fact, the hidden cost of mistreating ill employees often exceeds the cost of proactive compliance. Fortunately, organisations now offer cost-effective training solutions. These solutions allow executives and Human Resources (HR) or Industrial Relations (IR) practitioners to access learning materials at convenient times.
