Three years after a relevant High Court ruling, a draft amendment to the Employment Equity Act proposes removing the requirement for HPCSA certification of psychological and other similar employee tests
Section 8 of the Employment Equity Act 55 of 1998 (EEA) deals with psychological testing (and other similar assessments) of employees. Section 8(a) to (d) of the EEA sets out four requirements before tests/assessments can be used on employees. Section 8(d) of the EEA provides that psychological tests (and other similar assessments) must have
"been certified by the Health Professions Council of South Africa" before they may be used by an employer. This section was introduced as a result of amendments to the EEA in 2014. Our
previous article on the Employment Equity Amendment Bill (EEAB) briefly dealt with the removal of section 8(d) of the EEA.
This article considers the timeline of events since the introduction of this section and the reasons behind the EEAB removing it.
Initial motivation for section 8(d)
In 2014, government motivated the need to introduce certification by the HPCSA in terms of section 8(d), based on the history of these tests and assessments and the argument that, without proper certification, they were inherently exclusionary and biased. In other words, the tests and assessments were used as a tool to unfairly exclude groups or individuals from obtaining employment opportunities because they were not appropriate for the cultural diversity of South Africa. Through certification by the HPCSA, government hoped that these tests and assessments would be evaluated and adapted to align with the specific circumstances and realities of our country.
Legal challenge to section 8(d) of the EEA
In 2017, the Association of Test Publishers of South Africa (ATPSA) launched a legal challenge against section 8(d) of the EEA, arguing that the certification by the HPCSA was irrational and therefore null and void. ATPSA argued that the HPCSA did not have a framework or process to regulate the certification of psychological tests (and other similar assessments). ATPSA also argued that, factually, no tests had been certified as psychological tests by the HPCSA. The HPCSA only undertakes classification of psychological tests and assessments, which is entirely different from certification. In its judgment*, the High Court agreed with ATPSA and held that the requirement that psychological tests and similar assessments must be certified by the HPCSA was irrational. The court struck down the 2014 amendments that had brought section 8(d) of the EEA into effect.
Removal of section 8(d) by EEAB
More than three years after the High Court's judgment in favour of ATPSA, the EEAB is proposing to remove section 8(d) of the EEA. Effectively, this means that if the EEAB is passed into law, the requirement for psychological tests (and other similar assessments) to be certified by the HPCSA will fall away.
The explanatory memorandum attached to the EEAB says that the reason for the deletion of section 8(d) of the EEA is that the HPCSA does not have the capacity or procedures to certify these tests and assessments. In other words, the HPCSA practically has not been able to certify these tests and assessments since this section was introduced in 2014. The deletion of section 8(d) of the EEA is also in line with the High Court's judgment.
Despite the fact that there seemed to be good reason to introduce section 8(d) of the EEA, practical considerations around the functions of the HPCSA were not taken into account. A proper due diligence should have been undertaken to determine whether the HPCSA was equipped to certify psychological tests and other similar assessments. The question of whether psychological testing of employees is inherently biased and exclusionary remains. It is important to note, however, that the validity of such tests and assessments may be subject to evaluation by the Labour Court, if challenged.