A young analyst joins an elite advisory firm. The culture is relentless. The hours are elastic. Sleep is optional. She discloses diagnosed mood and anxiety disorders. The firm agrees to ringfence nine hours at night so she can sleep. Within weeks, she is dismissed. The justification? In high finance, availability is oxygen. If you are not permanently switched on, you do not belong.

The reported dispute involving Kathryn Shiber captures a sharp and uncomfortable legal question. When a workplace demands 24 hour responsiveness, and an employee with depression or anxiety asks for protected rest, is that a failure to perform, or is it a failure to accommodate disability?

In most modern legal systems the starting point is this: depression, anxiety disorders and clinically diagnosed mood disorders can constitute disabilities. They are not passing emotions or bad weeks. Where they are long term, recurring and substantially limit normal functioning, they fall squarely within the concept of disability in the United Kingdom under the Equality Act 2010 and in South Africa under the Employment Equity Act. South African jurisprudence recognises mental health conditions as disabilities where they are serious, long term and impact work performance or daily activities. The law does not confine disability to the visible or the physical.

In the UK, the legal architecture is layered. The Equality Act prohibits discrimination arising from disability and imposes a duty to make reasonable adjustments. If a requirement to work through the night places a disabled employee at a substantial disadvantage, the employer must show that it took reasonable steps to alleviate that disadvantage. Alongside this sits the Working Time Regulations, which entitle employees to minimum daily and weekly rest periods and impose a 48 hour weekly cap unless the employee voluntarily opts out. The law therefore pushes back against the mythology that permanent availability is simply the price of ambition.

South Africa takes a different structural route. The Basic Conditions of Employment Act regulates ordinary hours, overtime, rest periods and night work. On paper, it offers clear protection. But there is a gatekeeper: the earnings threshold determined by the Minister. Once an employee earns above that threshold, the protections relating to ordinary hours and overtime fall away. A high earning professional can lawfully be required to work punishing hours without statutory limitation. There is no need for an opt out. The protection simply evaporates by operation of income level.

This is the critical distinction. In the UK, seniority does not automatically strip away working time protection. In South Africa, remuneration does. The higher one climbs, the thinner the statutory shield becomes.

That does not mean there is no protection in South Africa. It means the battleground shifts. When the BCEA working time provisions no longer apply, the remaining armour is found in two places: the Labour Relations Act and the Employment Equity Act.

Under the Labour Relations Act, a dismissal must be substantively and procedurally fair. If an employee is dismissed because she cannot meet extreme hour expectations due to a medical condition, the employer must show that dismissal was fair for incapacity or operational reasons and that alternatives were properly considered. Where the true reason is linked to disability, the risk escalates dramatically. A dismissal that is automatically unfair on grounds of discrimination exposes the employer to uncapped compensation and reinstatement.

Under the Employment Equity Act, dismissal because of disability, or failure to reasonably accommodate a disabled employee, constitutes unfair discrimination. The duty to accommodate in South Africa is not decorative. It requires meaningful engagement. Adjustments must be considered unless they impose unjustifiable hardship. A guaranteed nightly rest period for someone with clinically diagnosed anxiety or depression is precisely the kind of accommodation a court would scrutinise closely. If an employer agrees to such an arrangement and then reverses course within weeks, it will struggle to argue that accommodation was impossible.

The central legal tension in both jurisdictions is the same. Is constant availability truly an inherent requirement of the job, or is it a cultural expectation dressed up as necessity? In South Africa, the concept of inherent requirements of the job is interpreted narrowly. An employer must prove that the requirement is rationally connected to the performance of the job and that without it the job cannot be performed. It is not enough to say that this is how our industry works. Courts increasingly interrogate whether the practice is indispensable or merely traditional.

Depression, anxiety and mood disorders are not footnotes to productivity. When properly diagnosed and long term, they qualify as disabilities in both UK and South African law. The legal consequences are serious. In the UK, failure to accommodate may breach both discrimination and working time regimes. In South Africa, once the salary threshold is crossed, the statutory limits on hours disappear, but the employer remains fully exposed under unfair dismissal law and anti discrimination law.

In elite professional environments, the unspoken rule is endurance. The law, however, is less impressed by bravado. In South Africa particularly, high earning employees cannot rely on the BCEA to cap their hours. Their protection lies instead in proving that dismissal linked to mental health is either unfair or discriminatory. The real question is not whether the industry demands sleeplessness. It is whether the law is prepared to accept that sleeplessness is essential.