Substantive Justice vs. Formal Justice

DISCLAIMER: This post is not legal advice. It is the musings and ponderings of one person. Please get legal advice, because this is all probably wrong. This is just what I do, not what you should do.

In the realm of care management, disciplinary decisions can be particularly challenging. The complexities of achieving a balance between substantive justice and formal justice in such situations often leave managers pondering how best to apply these principles. In this post, we will explore the differences between substantive and formal justice, their application in care management, and a method to ensure a fair and consistent approach to disciplinary matters.

To begin, let’s define justice in the context of workplace policies, which can be seen as a form of law within a company. Justice can be categorized into substantive justice and formal justice.

Substantive justice refers to the need for the law or workplace policies themselves to be just. What is considered fair may vary from person to person, but the prevailing moral leaning of society often dictates whether a policy is seen as just. Formal justice, on the other hand, ensures that legal principles are applied fairly. This means that legal rules or workplace policies should be followed without bias, and that like cases should be treated alike.

Conflicts may arise between substantive and formal justice when they operate side by side. For instance, in the case of R V R [1991], the creation of the offense of rape within marriage demonstrated substantive justice, but formal justice may not have been upheld as the defendant was imprisoned for something that was not a crime when he committed the act. In care, we expect workplace policies to be fair in their principles and in the way they are applied. We expect a synergy between substantive and formal justice, which can be difficult to achieve.

To help achieve this balance in practice, I employ the FIRAC method, borrowed from the system I used to write legal essays:

1. The Facts: Review the evidence, investigation report, and answers to questions asked during the meeting. Establish corroborated or uncontested facts, create a timeline, and stress test your findings.

2. The Issues: List the issues of fact, consider the evidence and corroboration, and challenge them. Keep an open mind during disciplinary or capability meetings, but be familiar with the facts. Be cautious about making assumptions and consider the possibility of errors in the application or substance of the policy.

3. The Rules: List the applicable rules or policies and familiarize yourself with these documents. Avoid introducing new allegations of breaches during the process, and review previous reasonings and cases for guidance.

4. The Analysis: Decide on the set of facts based on the balance of probabilities, objectively explain why you assigned more weight to one piece of evidence over another, and apply the policy documents to your determined facts.

5. The Conclusion: Write down the facts, your reasoning, the lists of issues, and your interpretation of the policy in light of the facts. Consider any reasonable adjustments to the policies and whether the person has made protected disclosures. Decide whether a breach has taken place, and factor in mitigating and aggravating factors when deciding an outcome in line with your organizational policies.

While this method is not exhaustive and does not guarantee a legally safe decision, it provides a framework for applying the principles of substantive and formal justice to disciplinary matters in care management. By considering these principles and following a structured process, managers can strive for fair and consistent outcomes that maintain trust, morale, and operational effectiveness within their organization.