Clinical Psychology and The Equality Act: The potential case for indirect discrimination (PART1)

Indirect discrimination and the Equality Act

Employing NHS trusts and (university based) clinical psychology courses share the legal responsibility to ensure that no unlawful discrimination occurs at any stage of the training process, this includes indirect discrimination (the present article will focus on race). Further, clinical psychology training arrangements are covered by employment and higher education jurisdictions both of which are subject to the Equality Act (2010) also referred to as ‘The Act’.  According to the Equality and Human Right Commission (EHRC, 2011), indirect discrimination exists when a provision, criteria or practice which is applied similarly across groups has the effect of putting individuals with a protected characteristic at a particular disadvantage and that criteria, provision or practice cannot be justified as a ‘proportionate means of achieving a legitimate aim’.

Although ‘disadvantage’ is not defined in law, the EHRC proposes that anything that a reasonable person would consider to be a disadvantage would be deemed disadvantageous in court/tribunal.  As examples, the commission lists the following as disadvantages: the denial of opportunities or of choices, deterrence, rejection or exclusion.  Similarly, ‘provision’, ‘criterion’ or ‘practice’ are undefined within The Act but, it is suggested that they should be interpreted widely so as to include both formal and informal arrangements and may thus cover admission onto courses, courses’ arrangements and their delivery.

Once disadvantage has been established, the provision, practice or criteria can only be deemed justified if they are not otherwise discriminatory and represent a real and objective consideration.  In the context of clinical psychology training, examples of legitimate aims might include the need to maintain academic standards or to ensure the health and safety and/or welfare of students and/or service users.  Nevertheless, even if an aim is legitimate, the means of achieving it must still remain proportionate (EHRC, 2011). Proportionate in this context means ‘appropriate and necessary’.  ‘Necessary’ however, does not mean that the provision, criterion or practice is the only possible way of achieving the legitimate aim.  In summary, the EHRC helpfully concludes that the more serious the disadvantage caused by a discriminatory provision, criterion or practice, the more convincing the justification must be for a defense to succeed.

Some potential implications for recruitment and selection

The potential for indirect discrimination on the ground of ‘race’ may become clearer by following the key steps which may need to be taken for such a claim to succeed.  The first step would be to clearly identify the provision(s), criteria/criterion or practice(s) equally applied to all relevant students/trainees or applicants.  The next, would entail establishing that the provision(s), criteria/criterion or practice(s) put students sharing a protected characteristic (e.g. applicants from specific minority ethnic groups or from the general BME population) at a particular disadvantage in comparison to those who do not share that characteristic (e.g. White British applicants or applicants from other minority ethnic groups). Naturally, in court/tribunal any claimant would also need to demonstrate that they have suffered the disadvantage in question. Crucially, the final step would be to establish that the said provision(s), criteria/criterion or practice(s) cannot be justified objectively.

There is no question that some on-going practices in terms of selection to clinical psychology training may disadvantage BME applicants as a group (or some sections of it).  For example, there are strict restrictions on the degree class applicants must achieve to be eligible to apply for training so that those with a 2.2 or low 2.1 are not generally considered. It has been argued that although distinguishing between applicants of similar aptitudes may challenge the fairness of the recruitment process at interview stage, at earlier stages of the shortlisting process the reliability of recruitment methods may be more robust. Others have attempted to justify the minimum criterion of the a 2.1 standard on the basis that clinical psychology training entails the undertaking of academically demanding studies and the completion of a doctorate degree. These arguments do appear to have face validity.

Nevertheless, as far as is known, there is currently no published empirical study or statistical information to support the predictive validity of such criteria in terms of both training and practice outcomes once qualified. Yet, there is a strong and growing body of evidence documenting real disparities in degree classification attained between different ethnic (and socio-demographic) groups with some groups of BME students considerably less likely to obtain first class and upper second class degrees, ‘the attainment gap’. Consequently, it is highly likely that the academic criteria described above would indirectly discriminate against some BME groups. Could such potential discrimination be held legitimate?

Minimum criteria may indeed need to be set to manage the vast number of applications however, in relation to the responsibilities imposed by The Act; one wonders whether this practical consideration may objectively pass the proportionality test.  Further, although there is no doubt that recruiting applicants who are able to sustain the demands of training and become competent clinical psychologists would constitute a legitimate aim, some difficulties may be encountered if we cannot objectively demonstrate that a real difference in terms of abilities to complete training and to fulfil the role of a Clinical Psychologist exists between applicants who may have achieved a 2.1 and applicants with a 2.2, and/or between those who have achieved a low 2.1 and those who achieved mid 2.1; particularly as class differences between degree attainments can depend on less than one percent difference.

For these criteria to be deemed essential and for the objectivity test to be met in court/tribunal, a real rather than a perceived difference may need to be established. Differences amongst courses in terms of academic entry requirements, (although those have reduced notably over the years), may further problematise the reported objectivity or necessity of these criteria and the defence that they help to maintain academic standards. Entry tests for all candidates who meet the “minimum” entry criteria are increasingly being used as part of the selection process.  These tests do have the potential to reduce the risk of indirectly discriminating against some groups of applicants provided that they have robust validity and reliability. Further, they may only be justified legally if they possess sound psychometric properties with scores clearly related to subsequent performance on a training programme, and indeed more problematically, once qualified, to work performance (naturally criteria used to select who is invited to sit such tests also need to be justified…)

Some research suggests that in comparison to their White counterparts; BME applicants are less likely to meet the ‘relevant experience’ criteria.  Additional evidence suggests that BME applicants may be less likely to have held Assistant Psychologist or Research Assistant posts, yet, it seems relatively common for such experience to be deemed ‘more relevant’ on the premise that it will give potential applicants more realistic views of the demands of clinical psychology training. This may be an interpretation of the competency-based assessment, which requires applicants to demonstrate developmental “readiness”. It is proposed that the same reasoning in terms of indirect discrimination could be applied to this practice/criteria whether formally or informally applied and; that it may fall foul of the Equality Act (2010), unless of course it can be objectively justified as a genuine requirement to perform the clinical psychologist role.  Again, inconsistencies across courses as to what experiences may be deemed more valuable/acceptable and the fact that there is yet no evidence suggesting that applicants who have held more ‘traditional’ roles fare better in training and in employment may also indicate that such criteria is not essential and thus that scoring those who can demonstrate it higher/or not shortlisting those who do not meet it, may be unjustified.

Conclusion

The validity and reliability of assessment methods is a serious challenge that the profession faces, not only in relation to selection, but also in terms of course assessment procedures.  Although arguably the latter may be less problematic as long as assessment tasks are properly mapped to the HCPC Standards of Proficiency, the legal framework for registering as a clinical psychologist, the influence of racial bias and indeed indirect discrimination may present real risks here too. To help establish that current practices are ‘justified’ it may be helpful for the Clearing House to systematically monitor applicants’ prior experiences in relation to ethnicity and ‘race’ (and other protected characteristics), for courses to document training outcomes in relation to degree classifications and prior experiences and, for the psychometric properties of entry tests to be established unequivocally. That there is currently limited data on which to base meaningful national analyses may well increase the risk of successful claims for indirect discrimination.

DISCLAIMER

This piece presents a lay person‘s reasoning and perspective. I am NOT legally qualified and do not intend the present article to constitute legal advice.

Acknowledgement

Simply to acknowledge the late Professor Malcolm Adams for his comments and support in writing the article which inspired this post.

Thank you for reading.

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4 comments

  1. A really fascinating post. Thanks for that. The issue is clearly very complex and I tend to think of it in terms of ‘pathways’ rather than ‘doorways’. One of the best analysis of this I’ve read is a recent report by the Government’s Social Mobility and Child Poverty Commission called “Non-educational barriers to the elite professions evaluation”.

    (By the way, the Social Mobility and Child Poverty Commission do fascinating rigorous sociological work which is made to make it look as boring as possible presumably to keep people away from its rather troubling findings. Worth keeping tabs on.)

    This recent report is a good example. It focuses on law and financial services but there are lots of clear lessons for clinical psychology. One is that definitions of ‘talent’ are thought to be neutral definitions matched to job requirements but often include heavily cultural aspects that define talent as being rather a narrow conception of middle class traditionally Anglophile values that the company already embodies.

    The report considers both ‘supply side’ and ‘demand side’ changes in the hiring process and considers altering the criteria for academic performance. However, it also notes the dilemma of selecting less on academic performance. To quote:

    “a continued movement away from a focus predominantly on academic skills [toward communication skills] was considered by participants to open up wider possibilities for diversity, particularly in relation to educational background…

    However, given the extent to which strong communication and client relationship skills are associated within the professions with middle-class status, it is entirely possible that without significant reworking of definitions of talent and their impact on difference and diversity, this trend could in fact have a negative impact on social inclusion.”

    Obviously, it’s a good example of where a strongly evidence-based approach is needed to test out various initiatives for their effect on a complex social system, but so little research is being done.

    I really recommend the report in full if you get the chance, there’s much food for thought for clinical psychology.

    1. Thank you, I will definitely have a read. I agree also that the issues are very complex. Hopefully they can be broken down into more manageable/addressable units (of disadvantage).

      I also wanted to add that rather than shifting the focus away from academic performance, perhaps it may be worth considering that academic and certainly professional abilities may not necessarily be reflected by degree classification, particularly for those coming from less privileged backgrounds.

      This may be controversial but, is it fair (and justified) to deem someone who obtained a 2:2 say, 58% (working throughout his/her studies and/or with English as a second language and/or without or with limited access to role models/mentoring/social support etc…) as having less academic potential than someone who might have achieved a 2.1 (say 63%) living a relatively cosy life? Some courses do encourage applicants to provide evidence of potential mitigating circumstances to ‘prove’ their academic attainments are not reflective of their abilities but, only a few do and, not everyone potentially affected is willing to disclose relevant factors and many people may simply not consider the adversities they have faced as ‘mitigating’. Further, how does one even ‘prove’ the mitigation? Exactly how much allowance should be given, if any at all? Who decides and how??? Anyways those are fundamental questions not only about validity and reliability (or about clinical psychology) but about ethics and social responsibility. Of course there is no easy solution…

    2. Thank you for your post Guilaine, I’d really like to read more about this issue, so I’m looking forward to reading part 2.

      In reply to vaughanbell – Thanks for your post too. You mentioned “strong communication” and “client relationship” skills, how it’s important for a CP to have these, and that often middle class applicants demonstrate these better. I think it might be useful to define these terms further so we can check whether there are implicit biases in what selectors currently value. It may be that different cultures and communities (groups that many clients identify with and belong to) place different emphases and value different aspects of communication and client relationship skills.
      Examples might include: preferences for tone and volume of voice, eye contact, sense of humour, the use of particular analogies, narratives and ways of thinking about life events and distress. In addition, there may be ways of communicating between CPs that are likely to be particularly valued. Could it be that course selectors who are likely to be largely white and middle class and who may be leaders/managers/researcher, have more power and are at greater liberty to shape and define the aspects of communication and relationship skills that are valued? Perhaps these are not even aligned with what clients value, but could mean that selectors go on to choose from a pool of applicants who mimic their preferences well – aka “learn to talk the talk”. This surely risks perpetuating a lack of diversity?

      Something else to think about are meta-messages – what does it communicate to BME clients that many CPs are white and middle class? Does it reinforce feelings of inequality and foster mistrust? Might it amplify feelings of alienation?

      All things to reflect on…… and act on?

      1. Hi CDS, Thank you very much for taking the time to post a comment. I agree entirely with the points you raised. I had been planning to address those together with the issues raised by Vaughanbell in a separate article. But yes, I do suspect that unconscious racial bias plays a part in the current under-representation of BME trainees. There is no rational reason to argue otherwise. I also agree that broader cultural differences play a part in how BME applicants/trainee may present and communicate and, without awareness of these potential differences (and adequate safeguards) it is entirely plausible (I’d say likely even), that those who deviate from the ‘norm’ re: White, middle-class (but also hetero, able bodied etc….) may be negatively (and unfairly) negatively assessed. As far the meta-messages and potential feelings of mistrust and alienation, you are spot on. I’d go as far as to argue that this lack of representation may feed into discourses of inferiority and/or internalised racism, stigma and also affect help seeking. Complex but interrelated issues…

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