Medical and Psychological testing: Is passing a requirement?
As a point of departure: according to section 7 and 8 of the Employment Equity Act, 55 of 1998 (“the Act”), employers are prohibited from performing medical- and psychological testing, or any other similar assessments, on employees. Employees, though, are often required to pass medical or psychological testing before they are considered for a certain vacancy. Such tests will only be lawful when legislation requires or permits the testing or when the employer can justify the reason for the testing.
According to section 7 of the Act, the employer may justify the prerequisite of a medical test in light of medical tests, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of the specific job.
While psychological testing or any other similar assessment may only occur when the results thereof have been scientifically shown to be valid and reliable, when such testing can be fairly applied to all employees, and lastly, that such tests will not bias any employee or group.
Furthermore, section 9 of the Act states that “employee” includes an applicant. Therefore, the aforesaid provisions are applicable to both employees that are currently employed by an employer and the applicants who are currently seeking employment.
So, what happens when the employer does not make it
clear why the medical, psychological or any other similar assessment is
required?
In the case of EWN v Pharmaco Distribution (Pty) Ltd (2016)
377 ILJ 449 (LC), the Labour Court was given the task of deciding
whether a clause, in the employment
contract of an employee suffering from bipolar disorder, which gives the
employer the discretion of having the employee undergo medical testing whenever
the employer deemed it necessary, was lawful.
A clause in the employee’s contract provided:
‘The employee will, whenever the company deems
necessary, undergo a specialist medical examination at the expense of the
company, by a medical practitioner nominated and appointed by the company. The
employee gives his/her irrevocable consent to any such medical practitioner
making the results and record of any medical examination available to the
company and to discuss same with such medical practitioner. The above shall
include and apply to psychological evaluations.’
The employee, however, refused to undergo the said
testing and one of the main issues which the Labour Court had to decide on was
whether the provision was enforceable; and whether her dismissal for failing to
submit to a medical examination was automatically unfair in terms of s187(1)(f)
of the Labour Relations Act (LRA) 66 of 1995.
The court
held that the section provides no exception based on the consent of the
employee in an employment contract and that medical testing will only be
permitted in the circumstances set out in section 7 or 8 of the Act, which did
not find application in this case. The court also found that the instruction to
undergo psychiatric testing on account of the employee’s bipolar condition
amounted to unfair discrimination in terms of section 6 of the Act. The
dismissal of the employee for refusing to undergo a psychiatric evaluation to
determine her fitness to work was found to be an automatically unfair dismissal
in terms of s187(1)(f) of the Labour Relations Act, 66 of 1995.
Employers are, however, still able to use arguments
such as “employment conditions” or “inherent requirements of a
job”, to “cover up” certain tests. This will result in applicants being
rejected or the results of such tests being used as grounds for dismissal. To
make sure whether such conditions or requirements will justify the rejection or
dismissal, it is important to look at the nature of the specific job in
question, the general practice and the history of the employer’s employment
conditions and inherent requirements of the job to evaluate whether the decision
was fair.
Employers
are only allowed in limited circumstances to require that employees undergo medical- and psychological testing or any
other similar assessments. Should there be a clause in the employment agreement
which provides for such testing, which was signed by the employee, it does not
necessarily mean that such testing will be lawful. It is important to
note whether such a clause is in line with the Act.
- Reference List:
- Employment Equity Act, 55 of 1998.
- EWN v Pharmaco Distribution (Pty) Ltd (2016) 377 ILJ 449 (LC).
- Labour Relations Act, 66 of 1995.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)