Court cancels new job test provisos

The High Court in Pretoria has set aside the promulgation of an amended clause to the Employment Equity Amendment Act, which sought to make it compulsory for the Health Professions Council (HPCSA) to certify all psychological testing and similar assessments used by employers.

The order, granted by Judge Nelisa Mali this week, followed a long legal battle between the Association of Test Publishers of South Africa (ATP), the labour minister and the HPCSA.

The ATP represents the group specialising in developing, validating, providing training in and distributing tests used by businesses as aids in hiring, placing and promoting employees.

The new Employment Equity Act was passed by parliament in 2014, but President Jacob Zuma and the labour minister signed a proclamation in July of the same year adding a new clause relating to the requirements for psychological testing.

In terms of the Act, such tests are prohibited unless they have been scientifically shown to be valid and reliable, could be applied fairly to all employees and were not biasedagainst any group.

The amended clause stated that in addition to these requirements, the psychological tests and assessments also had to be certified by the HPCSA.

The ATP contended the introduction of the new clause was premature as there was no framework in place regulating the certification of the tests by the HPCSA.

It turned to the court after the HPCSA refused to put a moratorium on the implementation of the new clause.

Mali ruled that Zuma’s signing of the proclamation bringing the amendment into operation was irrational and, therefore, invalid.

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