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