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 this post I take a dive into the jurisprudential differences between substantive justice and formal justice, before pondering how we should apply this to our management of people. I often consider this when sitting a disciplinary- should we have in-house precedents to ensure uniform application of policy? Does ‘case by case’ create an uneven playing field?
There may not be one simple answer. Let’s start by simply asking ‘what is justice?’. I couch this post in terms of law, but consider that workplace policies are a form of law in their own right- that is, the law of the company.
Most people would agree that the role of law is to achieve justice, however justice is a term which can only be defined subjectively; it relates to an individual’s moral standpoints. A utilitarian may argue that justice is served when the greatest good is done for the greatest number, whereas a Marxist may assert that justice is done only when all is equal in terms of wealth distribution. Justice may be easier to define holistically if its antonym ‘injustice’, in meaning that which is unfair, is appreciated. It is useful to categorise justice into ‘substantive justice’ and ‘formal justice’ when attempting to comprehend its nature.
Substantive justice pertains to the need of law itself to be just, whether created through legislature (or in our case: workplace policy) or legal precedent (what did we do last time in a similar situation?). What is considered ‘fair may vary from person to person, yet the prevailing moral leaning of society will often dictate whether a law is seen as just.
Formal justice is concerned with ensuring that legal principles are applied in a fair way. This means there must be a following of legal rules; all like cases should be treated alike and, conversely, unalike cases should be treated unalike. A lack of bias is essential when a judge is hearing a case, and procedure must be applied evenly and equally to all. Is it fair to dismiss one employee for a given misconduct, but only administer a written warning in a similar case the week after?
Substantive justice and formal justice differ in that formal justice’s jurisdiction lies in the procedural domain of following rules, whereas substantive justice seeks to ensure that the rules themselves are fair. Formal justice is concerned with treating like cases alike, and substantive justice must specify what counts as alike. Formal justice is easier to apply rigidly if one asserts that all laws, whether fair or not, if applied equally to everyone, are therefore just. Substantive justice, on the other hand, has the complex task of ascertaining exactly what is fair.
There can be conflicts of justice when the two try to operate side by side. Before 1991, there was no offence of rape within marriage. The case of R V R , which created the offence, showed considerable substantive justice, however formal justice may not have prevailed as the defendant was imprisoned for something that was not a crime when he committed the act. A.V. Dicey, a legendary legal philosopher, said pertaining to legal procedure: “in principle no law should have retrospective effect”.
We expect law, and workplace policies, to be fair and just in its principles and in the way that they are applied. We do not just expect substantive justice, or formal justice; we expect something entirely more complex and incredibly difficult to achieve: a synergy of the two.
How do we achieve this in practice? Ultimately, nobody can expect a manager to decide on disciplinary issues with the deft reasoning of a chancery judge, but there are some principles that have served me well when trying to remain objective about some rather emotive disciplinary issues (for example, safeguarding related concerns). I tend to go through them using the FIRAC method, which I stole from the system I used to write legal essays:
- Read through all the evidence put forward, read the investigation report, and review answers to any questions asked in the meeting thusfar.
- Establish the facts. By facts, I mean facts that have been corroborated, or that are not contentious. Not facts as you believe them to be based on prior knowledge of the staff involved.
- Timeline. This is immensely useful. Set up a simple table with three columns, the first with the date and time, and the second with the fact. The third column should contain your justification for it being a fact. 1/2/2025 1005hrs : Mrs J’s buzzer sounded : Time displayed on nurse call log.
- Assume you got it wrong. Stress test your facts. Go back through your justifications, and play devil’s advocate. This might expose some more investigation that could yield more data to assist your decision. Maybe the carer wrote in her statement that the buzzer alarmed at 1030hrs. Is this evidence of poor credibility? Would you assign less weight to their statement? It might be that the clocks on the home walls are not synced, and a quick investigation would show that the carer’s timeline is not incongruous with your chronology.
- This is where you need to list what the issues of fact are. It is rare that both the investigator/ company/ aggrieved and the member of staff agree on all the facts. Usually, there will be disagreements.
- It isn’t enough to just go with your gut. You owe the staff member an objective view. Look at the evidence, and see if there are corroborations. Challenge them. You need to chair a disciplinary/ capability meeting with an open mind, but you do not have to chair with an empty mind. If in doubt, assume the fact profile more favourable to the staff member who is subject to the process. It is safer for the company, as legal risks tend to arise when subjecting people to unfair detriment. Not to mention ‘innocent until proven guilty’!
- Return to step 4 after reading ‘The Rules’.
- Consider not just the application of the rule/ policy, but also the substance of the rule/ policy itself. Companies should still have an element of humility, and it may be that there is learning for the organisation too.
- In the Army, when investigating explosive/ ammunition incidents, we were taught the difference between an ‘error in drill’ and an ‘error of drill’. Basically, did the adverse outcome arise because of an error in the application of a policy, or because of an error in the policy itself?
- Was the staff member reasonably aware of the policy? Review training records, and review HR processes. Do all staff members get given a copy of a policy handbook on their first day? Inductions? Refreshers? Consider it all- do you know every word of every policy in your organisation?
- You should now go to ‘The Analysis’.
- List the applicable rules/ policies. What has the staff member been accused of? What policy have they breached? Is this contractual? Familiarise yourself with these documents.
- Do not introduce new allegations of breaches. You may come across these, but these should follow their own disciplinary process. A staff member accused of breaching confidentiality should not be expected to defend against an allegation of bullying on the fly. They should be allowed time to prepare a defence, and also to consider accompaniment etc.
- Here is a good time to look back through similar cases. I wouldn’t advise trying to run a strict system of precedent. That would be far too time consuming and resource intensive. Thankfully, it is rare you get two cases before you that are identical. Very rare. It is, however, sensible to apply broadly the same principles across your practice. Write yourself some notes, and review your previous reasonings.
- There is probably a legal risk that if you do not treat broadly alike cases alike, you may inadvertently expose the company to risk of your decisions being seen as discriminatory.
- There is a leadership and PR risk in that nobody wants to work for an employer they see as unfair. This could denigrate and degrade trust, morale, and ultimately operational effectiveness of the organisation.
- Now that you have a list of the facts, a timeline, a list of disputed facts, and a list of policies, you need to decide on the set of facts as you believe them to be on the balance of probabilities. What does the balance of probabilities mean? You need to be 51% more sure than not a certain fact is true. Your belief needs to be reasonable in the eyes of an objective third party. Again, I would always err on the side of caution, and hold a relatively high threshold for any decision that may cause detriment to the employee going through the process.
- Word against word does not need to be 50-50 weighted, but proceed with caution. A lot of caution. You should be able to objectively explain why you assigned more weight to one person over the other. This should be explained clearly in your notes. It might be that one person consistently changes their story and their version of events is just not credible. Explain why.
- The best way to read policy is to follow the rules of statutory interpretation, and take into account the literal meaning of the words, except where the application of the literal wording would lead to an absurd outcome, then consider what mischief the rule is designed to prevent, and then also what overarching goal is to be achieved. I always try to take the most lenient approach that maintains an effective business.
- Apply the policy documents to the set of facts as you believe them to be. On the balance of probabilities, do you believe that the staff member has committed the misconduct they have been accused of? Job done. Nearly.
- This is where you put it all together. Write down the set of facts as you believe them to be. Write down why you decided them to be so, especially where there was contention. Then write down the lists of issues- whether the facts as now given amount to a breach of the applicable policy. Then outline the policy, how you interpret it in light of the facts, and how the facts so apply.
- There’s a lot of work here now, but you’re getting close to a fair and reasoned decision at a disciplinary hearing.
- Consider whether any reasonable adjustments need to be made to the policies, or whether the person has made protected disclosures etc. Write it down. Then decide whether a breach has taken place, and you guessed it- write it down.
- If no breach, great. End of story, but there must be organisational learning. That’s another post entirely. Look at any mitigating and aggravating factors. Factor them in when deciding an outcome in line with your organisational policies.
That’s it. Keep your notes, you might find them useful at any subsequent appeal. Follow your organisational policies when providing outcomes etc.
In a nutshell, that is how I try to apply the principles of substansive and formal justice to my HR practice as it pertains to disciplinaries. Clearly, the process I have outlined here is nowhere near exhastive, and has not given you enough information to make a legally safe decision. Further considerations must be had, for example compliance with the ACAS code of practice, this is just ponderings around the specific jurisprudential utopia outlined in the first paragraph or two.