You should give a damn

Proposed amendments to Labour legislation: 
Friend or Foe?


Every so often legislation with regards to labour and therefore, employment practices, is amended.  Some of the latest amendment bills include the Labour Relations Amendment Bill  and the Employment Equity Amendment Bill  which will have an impact on employment policies and practices.  A list of the proposed Amendment Bills for 2012 is available on the Department of Labour’s Website with a discussion of the proposed amendments available on the LabourWise Website.

While a fair amount is known about the proposed amendments to the Labour Relations Act (Act 66 of 1999) less is known about the proposed amendments to the Employment Equity Act (55 of 1998).  Of particular interest are the suggested amendments to chapter two of this Act dealing with the “Prohibition of unfair discrimination”. 

The first amendment is an addition to Section 6 and reads “A difference in terms and conditions of employment between employees of the same employer performing the same or substantially the same work or work of equal value that is directly or indirectly based on any one or more of the grounds listed in subsection (1) or on any other arbitrary ground is unfair discrimination.”
The second is the proposed changes to Section 8 dealing with Psychological testing and other similar assessments, which will, should the amendments be approved read “Psychometric testing” and will include the following “(d) has been certified by the Health Professions Council of South Africa established under the Health Professions Act, 56 of 1974 or any other body which may be authorised by law to certify such tests or assessments.” 
The impact of the second proposed amendment for organisations that include psychometric/psychological and/or other similar assessments, including interviews, as part of their selection and placement (including selecting “trainees” and identifying candidates for promotion) process and subsequent decisions is significant.

The current wording of Section 8 correctly implies that employees can be unfairly discriminated against should an “unfair” decision is based on information derived from tools other than psychological tests such as interviews to name but one..  The current wording of Section 8 also implies that the psychometric properties of psychological tests must be sound.  Where organisations employ the services of a Psychometrist or an Industrial and Organisaitonal Psychologist (IOP), these persons, are bound by their professional code of ethical practice  within their scope of practice to ensure that assessments use have sound psychometric properties.  Because registered professionals need to ensure that their competencies are up to date they should be aware of debates or criticism relating to the psychometric properties of the psychological assessment measures they use. 
According to the Health Professions Act (Act 56 of 1974) any measure of intellectual/cognitive ability/functioning, aptitude, interest, personality make-up or personality functioning, that may in terms of its content or responses required, result in either embarrassment or anxiety to the test-taker is deemed to constitute a psychological act and therefore needs to be administered by a registered psychologists or psychometrists (with some “restrictions”).  Only professionals appropriately registered with the Health Professions Counsil of South Africa (HPCSA) are allowed to administer certified psychometric assessments. Most “assessments” (even an interview) used for selection and placement, according to the Health Professions Act could therefore amount to a psychological act.  This is not problematic given the current wording of the Employment Equity Act as it does not state that assessments need to be certified with the HPCSA.  There  is however  a need for any assessment process to be non-discriminatory, valid, reliable and fair.  The point is that all assessments certified by the HPCSA receive certification because they are found to, amongst others, possess such properties.  It is possible that the proposed amendments are an attempt to ensure that assessments used as part of a selection process are indeed “fair”.  The People Assessment in Industry (PAI)  an interest group of the Society for Industrial and Organisational Psychology in South Africa (SIOPSA), has commented on the proposed amendments stating that “the proposed amendments is anticipated to result in an unsustainable situation . . . .(and) SIOPSA proposes that the proposed amendments to section 8 of the Employment Equity Act be discarded”.

The proposed amendments are likely to elicit both support and resistance from registered professionals and organisations.  Suppliers of psychometric assessments, not certified with the HPCSA, would obviously object to such proposal due to financial implications.  Organisaions may, for the same reason, oppose the suggested amendments.  Smaller organisations may not be able afford psychometric assessments bearing in mind that such assessment would need to be administered by a professional registered with the HPCSA.  Some registered professionals may welcome the proposed amendment as organisations will need to make use of their services.  Of concern is the provision of feedback to candidates/employees after the assessments have been done, as the feedback received often can and does evoke anxiety.  It is all well to ask a registered professional to administer the assessments and so comply with the requirements of the proposed amended Employment Equity Act.  It is an ethical requirement that professionals do not expose persons or organisations with whom they have a professional relationship to harm or exploitation.  Thus care should be taken when feedback is provided as a trained professional may provide feedback to the organization but a trained professional may not be the one providing feedback to candidates/employees.  In addition, it must be born in mind that while some psychometric assessments will be administered in the South African Context the employees may perform their duties outside of South Africa.  The context in which and for which the assessment is requested should be considered and should organisations be limited to assessments certified by the HPCSA appropriate norm groups (for destination countries) may not be available.  One then needs to consider the cultural fairness and validity of assessments done in the South African Context for placement in countries other than South Africa.  The implications of the proposed amendments stretch beyond an argument relating to psychometric properties (which it should), and certification.

Regardless of whether the amendments are approved or not organisations should:
•    Base their request for assessments (and interview questions) on the content of a job description and job specification.  These are documents the registered professional should call for, should they be asked to do assessments, anyway. 
•    Consult with an appropriately qualified professional in order to establish the fairness, validity, and reliability of any assessments or assessment methods currently in use. 
•    Ensure that when dealing with a suitably qualified professional they are registered with the HPCSA as they are legally permitted to administer certified assessments.  Because registered professionals must undergo continuous professional development training likelihood that the organization is consulting with an informed individual is increased.