Evalex’s view on the current testing and assessment environment in South Africa
2017 was a tumultuous and landmark year for the assessment field in South Africa. Judgement was delivered on 2 May 2017 by Judge Mali in the application brought by the Association of Test Publishers (ATP) in regard to the amendment to Section 8 of the Employment Equity Act of 1998 (EEA).
Regardless of outcome of this important court case, Evalex has always ensured that we comply with relevant regulations and legislation. Our psychometrics are registered and on the list of HPCSA classified and certified tests. Furthermore, they also comply with the EEA as well as the Health Professions Act. We have a strong research capability that is continuously busy with validity, reliability and fairness studies. Furthermore, we have team members involved with the ATP and People Assessments in Industry (PAI) to stay abreast of developments and to provide input where required.
The purpose of this document is to provide some insight into the events that led up to the court case and to summarise the implications thereof.
The amendment stood as follows:
Amendments of Section 8 of to the Employment Equity Act No 55 of 1998 (this Act has been updated to Government Gazette 37871 dated 25 July 2014):
Psychological testing and other similar assessments of an employee are prohibited unless the test or assessment being used-
a) Has been scientifically shown to be valid and reliable
b) Can be applied fairly to all employees
c) Is not biased against any employee or group
The following amendment took place:
Paragraph (d) amended by Section 4 of Act No. 47 of 2013 requires that the testing be certified by the Health Professions Council of South Africa, established by Section 2 of the Health Professions Act, 1974 (Act No. 56 of 1974), or any other body that may be authorised by law to certify those tests or assessments.
The court found in favour of ATP’s application and granted the following order:
a) That the Proclamation 50 published in Government Gazette 37871 on 25 July 2014 is null and void and of no force or effect to the extent that it brings into operation the amendment of section 8 (clause “d”) of the Employment Equity Act, Act 55 of 1998 in terms of Section 4 of the Employment Equity Amendment Act, 2013, Act 47 of 2013.
b) That Section 8 of the Employment Equity Act, Act 55 of 1998 as it pertained on 31 July 2014 continued (clauses “a” to “c”), and continues, unabated as from the aforesaid date.
For more detailed information read this article and this article on the Society for Industrial and Organisational Psychology in South Africa (SIOPSA) website.
According to the Health Professions Act (no. 56 of 1974), instruments that measure psychological constructs must be used, interpreted and controlled by psychologists. Furthermore, only individuals registered with the Professional Board of Psychology (HPCSA) may use psychological tests.
Chapter 5, point 55 in particular states that – A psychologist shall not base – (a) his or her assessment or intervention decision or recommendation on data or test results that are outdated for the current purpose; or (b) such a decision or recommendation on tests and measures that are obsolete and not useful for the current purpose, but shall ensure that tests used have been classified by the board and that the provisions of any applicable legislation, such as the Employment Equity Act, 1998 (Act No. 55 of 1998), have been complied with.
For a full history of the events that unfolded towards the court, click here.
Following the order, the HPCSA released a media statement on 15 August 2017, which essentially indicated that, “This, effectively means that, for now, psychological testing or similar assessment on an employee do not need to be certified by the Health Professions Council of South Africa. The Professional Board for Psychology (‘the Board’) has decided not to challenge the High Court’s decision in this regard.
“The Board has also recently recommended to the HPCSA the regulations for development, control, and use of psychological tests. These regulations deal with the classification of tests for use in the South African context and will be recommended to the Minister of Health for publication for comment. Members of the public will have an opportunity of commenting on these regulations before they are promulgated finally into law.”
Following the release of the media statement, the HPCSA released the Revised and gazetted published list of Psychological tests released 8 September 2017.
What this all essentially means is that according to the Health Professions Act, the HPCSA is the body mandated by law to classify if a test measures a psychological construct or not. If it does, then the test has to be used by a psychologist (registered with the HPCSA). However, there are currently no clear criteria for the evaluation or certification of these tests and the HPCSA has indicated that “for now, psychological testing or similar assessment on an employee do not need to be certified by the Health Professions Council of South Africa.”
Furthermore, despite the removal of clause d from EEA, the judgment means that employers or psychologists and psychometrists still need to comply with the provisions of the EEA Section 8 (a), (b) and (c), which state that a test should be able to provide concrete evidence as to its reliability, validity, fairness and non-biased nature in the South African context. However, what is rather unclear at this point in time is the use of tests classified and certified by the HPCSA.
To date, industry is still awaiting the release of the HPCSA regulations on test usage to provide clear and objective criteria in terms of how tests are classified, if they are psychological or not and what the criteria for instrument certification should be.
The ATP court case win has galvanised action regarding the finalisation of regulations and re-evaluation of processes and is a golden opportunity for everyone involved in the testing and assessment industry to work together and provide input that will meet best practice requirements.
An example of this type of collaboration is already in place with stakeholders from the HPCSA, PAI (as an interest group of SIOPSA), ATP, Psychological Society of South Africa (PsySSA) and the International Test Commission (ITC) meeting on a regular basis to discuss events and the way forward.
Evalex continues to stay abreast of these developments with involvement in the ATP and PAI, to ensure that we can continue providing our clients with accurate information for well-informed assessment decision-making.