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 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.