Good day everyone, and welcome to another discussion in our What if series, where we bring you insights in the format of a what if question on the ever-evolving landscape of employment law.
I am Ross Simon from Maserumule Corporate Employment Law, and in today's discussion we will be unpacking a particularly significant case — one that demonstrates the serious consequences when employers ignore formal medical guidance regarding disability accommodation. To kick start this discussion, let’s pose the question
What if an employer ignores formal medical guidance for disability support of an employee — what are the legal considerations and implications?
The answer comes from
Solidarity obo Riaan Nel v National Metrology Institute of South Africa.
The employee, Mr Nel, worked since 2002 as a Principal Metrologist. In early 2024, he was diagnosed with autism spectrum disorder and major depressive disorder. He submitted medical and occupational therapy reports recommending reasonable accommodation including: gradual return-to-work, time off for treatment, relief from large social events, work-from-home flexibility, and workplace adjustments for sensory sensitivities.
The employer failed to meaningfully implement these recommendations. Instead, it demanded further medical testing without explaining why existing reports were inadequate, and initiated performance management meetings.
On 16 October 2025, Mr Nel's psychologist warned that without appropriate accommodations, there was serious risk to his mental health, including self-harm and suicide.
After the employer refused to provide undertakings, the employee’s union launched an urgent application to the Labour Court seeking: implementation of recommended accommodations, restraint from requiring further medical testing, restraint from performance management, and restraint from disability-linked harassment.
The employer opposed, arguing the court lacked jurisdiction because internal processes weren't exhausted. It counter-applied to compel medical testing and strike out transcripts of meetings the employee had recorded.
On the issue of Jurisdiction: The employer argued the court lacked jurisdiction before CCMA processes. But the Court held, — where conduct poses serious, documented, imminent threat to an employee's dignity, health, and psychological integrity, the Labour Court may intervene urgently. The prescribed pathway wouldn't afford effective relief in time to prevent serious harm.
On the issue of Urgency: The Court found urgency arose when the employer, after receiving the psychologist's warning of self-harm risk, declined to provide undertakings.
On the issue of Recorded Meetings: The Court ruled recordings made by a meeting participant were admissible. These were performance management meetings in ordinary employment, not privileged settlement negotiations. The striking-out application was refused.
On the issue of reasonable Accommodation: The Court found material risk of harm to the employee unless working arrangements aligned with treating professionals' recommendations.
On the issue of Medical Testing: Medical testing is inherently intrusive, engaging dignity and privacy interests. Section 7 of the Employment Equity Act expressly prohibits it subject to exceptions. The employer hadn't explained why existing reports were inadequate or what purpose further testing served. Interim restraint was warranted.
And lastly on the issue of Performance Management: Though ordinarily a managerial prerogative, the Court said, — the employer hadn't implemented recommendations addressing conditions under which the employee could perform. Assessing performance without a settled accommodation framework, on the medical evidence, risked exacerbating harm.
The Court granted a provisional court order with immediate interim relief. In terms of the interim order the employer must maintain reasonable working arrangements consistent with medical recommendations. The employer is interdicted from requiring further medical assessment unless properly justified, from performance management relating to disability-connected deficiencies, and from disability-linked harassment. The counter-applications were refused.
What we learn from this case is:
First, reasonable accommodation under the Employment Equity Act is mandatory. Under the Employment Equity Act and its Code of Good Practice on the Employment of Persons with Disabilities, “reasonable accommodation” means practical changes to duties, hours, tools, or the workplace that enable a disabled employee to perform the essential functions of the job and access benefits on an equal basis, after genuine consultation with the employee about their specific needs.
Second, meaningful engagement is required — token accommodations or delay won't suffice. The employer must actively explore and implement effective, timely measures (not cosmetic gestures or open‑ended delays), unless doing so would cause “unjustifiable hardship”, such as disproportionate cost, serious operational disruption, or unavoidable health and safety risks that cannot be reduced by any feasible adjustment. If, even after considering all reasonable options, the employee still cannot perform the inherent requirements of the job without substantial risk of harm to themselves or others, or the accommodation would impose such unjustifiable hardship, South African labour law does not require the employer to provide or continue the accommodation.
Third, medical testing requires justification under section 7 of the EEA. and lastly, accommodation must precede performance management.
The bottom line: ignoring formal medical guidance exposes employers to significant legal risk and can cause serious harm to employees.
That brings us to the end of this week's discussion. Thank you for joining us. I hope you have found our discussion informative. If you have any questions or comments, we'd love to hear from you.
You can find us on social media or email me on ross@masconsulting.co.za. Until next time — bye-bye.
– Ross Simon -LLB, BCom (Law), Admitted Attorney, Legal Advisor from Maserumule Corporate Employment Law
View the full case for Solidarity obo Nel v National Metrology Institute of South Africa [2026]
