For feedback on the court case by Gordon Hay, Senior Consultant, Corporate and Commercial Law, MacRobert Attorneys, CLICK HERE.
Prof Hennie Kriek, as Chairperson of the Test Publishers Association of South Africa (ATP) provided the following information based on his observations at the recent court case of the ATP vs. the President, Minister of Labour, and Health Professions Council of South Africa (HPCSA).
The court case launched by the ATP was heard in the High Court in Pretoria on 29 and 30 November 2016. Judgment has been reserved as the court recess is set to commence. Judgment is likely to be given towards the end of January 2017.
Personally, I feel that the ATP legal counsel did a fantastic job to describe the technical problems and shortcomings in the current legislative framework around the regulation of testing in the workplace. Adv Nic Maritz (SC), supported by Gordon Hay of MacRoberts Attorneys, were extremely well prepared. Adv Maritz made a convincing case around the dilemmas we face in our industry. It has always been the contention of the ATP that we welcome further regulation of the assessment industry in South Africa to support best practice and ethical behaviour. These regulations must, however, be implemented in a proper, practical, and responsible manner – this is the issue at the core of what we aim to achieve.
One very important outcome of the court case for users of testing in industry, is the concession that was made by the counsel for the respondents (the President, the Minister of Labour, and the HPCSA). The concession is that, as it stands, the reference to “other similar assessments” in Section 8 refers to tests other than psychological tests and that there is currently no procedure in place, or body authorised, to issue a certificate as envisaged in section 8(d) in respect of these non-psychological assessments. To this extent, it was conceded that bringing into effect Section 8(d), in respect of “other similar assessments”, was incorrect. This position is, ironically, in line with the original request by the the Society for Industrial & Organisational Psychology (SIOPSA) and in person by Prof Ricky Mauer and Kasturi Naainar to add “other similar assessments” to the proposed Employment Equity Act (EEA) legislation during parliamentary hearings at the time.
The direct implication is that Competency Based Assessments, Interviews, Assessment Centres, and other psychometric assessments that are similar to psychological assessments, but are non-psychological tests, fall outside the jurisdiction of the HPCSA. The so called “grey” area, of what types of assessment instruments need to be classified by the HPCSA, is now clear. Only instruments, tests, devices, and assessments measuring psychological constructs fall within the domain of the Psychological Board, the Psychometrics Committee, and the HPCSA. These other similar assessments (non-psychological assessments), however, still need to comply with the other clauses of Section 8 when used in the workplace. Specifically, these sub-sections require that the test must have been scientifically shown to be valid and reliable, can be applied fairly to employees, and is not biased against any employee or group.
Prof Hennie Kriek Chairman
Association of Test Publishers of South Africa