There are two key legislations that regulate testing and assessment of psychological constructs and its use in the workplace, that is, the Health Professions Act (Act No. 56 of 1974) and the Employment Equity Act (Act No 55 of 1998). The testing and assessment of psychological constructs fall within the definition of ‘psychological acts’ as stated in the Health Professions Act. These include psychometric measuring devices, tests, questionnaires, techniques, or instruments that assess psychological constructs such as intellectual or cognitive ability or functioning, aptitude, interest, personality make-up or personality functioning. The administration, interpretation and reporting of these tests are deemed psychological acts which are reserved for psychologists registered with the HPCSA. Psychometrists registered with the HPCSA can administer, interpret and/or report on all tests except projective and neuropsychological tests. Registered Counsellors may also use certain assessments.
The conduct of these acts and its use is also regulated and contextualised by the Employment Equity Act to ensure there is no unfair discrimination in employment, there is equity and the redress of the effects of discrimination, and the achievement of a diverse and representative workforce. Clauses A to C of Section 8 of the Act prohibits ‘psychological testing and similar assessments’ unless these are shown to be valid and reliable scientifically, can be applied fairly to all employees, and is not biased against any employee or group. There was much debate when Clause D, an amendment to Section 8 of the Act, was proposed and later proclaimed and gazetted regarding the certification of psychological tests and similar assessments by the HPCSA (see the text box below). Certification concerns the quality of the psychological tests; and it requires the development of quality of standards and the mechanisms, processes, and capacity for quality assurance.
Assessment classification and certification in SA
The amendments were challenged by the Association of Test Publishers (ATP) in South Africa regarding the ability of the HPCSA (and its Psychometrics Committee) to deliver on its new mandate effectively and efficiently with limited capacities and resources. This is in relation to both the traditional form of assessments and the new generation of assessments. The court judgment found the Clause D to be null and void, ruling that Clauses A to C remain as is in the Employment Equity Act.
Amendments of Section 8 of the Employment Equity Act No 55 of 1998 (Government Gazette 37871 dated 25 July, 2014), which previously comprised Clauses A to C as below:
- Psychological testing and other similar assessments of an employee are prohibited unless the test or assessment being used-
- Has been scientifically shown to be valid and reliable;
- Can be applied fairly to all employees;
- Is not biased against any employee or group;
Clause D amended by section 4 of Act No. 47 of 2013 states:
- Has been 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 which may be authorised by law to certify those tests or assessments
On 2 May 2017 Judge Mali provided the following judgment and granted the following order in the legal challenged by ATP:
- 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 Employment Equity Act, Act 55 of 1998 in terms of section 4 of the Employment Equity Amendment Act, 2013, Act 47 of 2013.
- That Section 8 of the Employment Equity Act, Act 55 of 1998 as it pertained on 31 July 2014 (clauses “a” to “c”) continues, unabated as from the aforesaid date
The amendments and the court challenge engendered many a discussion and deliberations on the mandate of the HPCSA and its Psychometrics Committee; what falls within the definition of psychological or similar tests and assessments which has implications for the new generation assessments; and the criteria, mechanisms, and appropriate body for test certification. The sections that follow discusses these further.
Health Professions Council of South Africa’s (HPCSA) revised mandate
During June 2019, the Professional Board for Psychology of the HPCSA released a revised mandate of its Psychometrics Committee, indicating that the committee would be focussing on test classification and not test certification. The registration of a test with the HPCSA and its classification as a psychological test, as published and gazetted by the HPCSA, is not a certification of the compliance of the test with the Employment Equity Act or any other evaluative certification. Through the registration the HPCSA will be indicating whether the test measures a psychological construct or not and if it does, it will be classified as a psychological test that must be controlled and used by a HPCSA registered psychologist and psychometrist as indicated.
The Psychometrics Committee is now mandated:
To classify any device, instrument, questionnaire, apparatus, method, technique or test aimed at the evaluation of emotional, behavioural and cognitive processes or adjustment of personality of individuals or groups of persons, or for the determination of intellectual abilities, psychopathology, personality make-up, personality functioning, aptitude or interests by the usage and interpretation of questionnaires, tests projections or other techniques or any apparatus, whether of SA origin or imported, and to report thereon to the Professional Board.
The annual publication of a list of psychological tests/psychometric instruments classified by the Professional Board
Develop training guidelines/standards related to psychometrics and psychological assessment that can inform and be used in the accreditation of qualifications, universities and internship programmes, when setting the national Board examinations, and for continuing professional development purposes
Develop guidelines for ethical practice related to test use and psychological assessment and how to assess whether a psychological test meets the required standards
Develop minimum requirements/standards for psychological tests
Classification will entail verifying whether a test was psychological or not. To this end, practitioners and publishers should submit the full test manual that states the construct(s) tapped by the test, evidence of psychometric properties, an indication as to whether the item content was culturally appropriate. No costs would be attached to test classification by the Professional Board.