Objections to Just Culture from Regulators & Lawyers
One of the challenges when implementing a Just Culture is addressing objections from regulators and lawyers, especially in highly regulated industries. These objections can often arise from misconceptions of what Just Culture is or perceived incompatibilities with other needs. It can also come from the challenges Just Culture can present to the presuppositions held by some lawyers. In this blog post I'd like to talk about some of these objections and how they can be addressed.
A workplace shouldn't provide justice, that's for the courts
Sometimes lawyers have expressed the view that organisations shouldn't be trying to provide justice, that is the role of the courts. There is some truth in this in that only courts can make authoritative declarations on peoples' legal rights and obligations. However, the concept of justice goes beyond formal legal declarations, it is a deeply held human value that people are to be treated in an equitable and fair way and receive what they "deserve". Of course, how terms like 'fair' or 'deserve' will be interpreted and expressed differently across history, cultures, regions, and philosophies. Nevertheless, the concept of justice in some form cuts across all areas of human interaction, including workplaces.
I would certainly argue that organisations have a moral and ethical obligation to, as far as they are able, be just and fair workplaces. Should people be subjected to work conditions where decisions are made arbitrarily or capriciously, where harmful behaviour towards others is allowed to run rampant, or where they are punished for circumstances beyond their control?
Quite apart from moral obligation, society imposes legal obligations on organisations to treat staff and others in a just and fair manner. Unfair dismissal laws require employers to act fairly in matters of employee discipline, sexual harassment laws require organisations to investigate and deal appropriately with allegations of abuse. Organisations are therefore legally required to provide organisational justice. In fact, the new psychosocial risks regulations being introduced into Australia make poor organisational justice a risk that employers are required to protect their staff and others from being exposed to.
A workplace can't provide justice - only the courts can do that
As mentioned above, taking justice in its wider (not just formal legal) sense, workplaces are required by law to deliver it. Some might regard it as an impossible goal, but regardless the organisation has to do its best. The question then becomes whether they will do a good or bad job of it. This is exactly where Just Culture comes into play. Just Culture helps ensure that people are treated fairly and justly, using many of the same principles that the legal system would such as:
· Procedural Fairness,
· Taking into account the surrounding context when assessing actions and intentions,
· Fair and consistent application of workplace rules, and
· Open and transparent processes.
Just Culture gives leaders and supervisors the knowledge, tools and support to build and run fair and just organisations, and gives staff the avenues to meaningfully contribute to achieving that goal.
These days many organisations have built capability for formal investigation and disciplinary procedures for things like alleged misconduct. While not to the level of sophistication of a court of law, these workplace investigations, if designed well with just culture principles, ensure that organisational justice is done as fairly and effectively as possible.
Just Culture simply lets people off the hook - it lacks accountability
One of the reasons that Just Culture can sometimes been seen as lacking accountability by people familiar with the legal system is differing concepts of accountability. The legal system is generally focused on backwards accountability, what happened and who is responsible. Just Culture balances backwards accountability with forwards accountability, who is responsible for learning from what happened to ensure it does/doesn't happen again (depending on whether outcome was good or bad). To be able to have forwards accountability sometimes means having to change how you do backwards accountability, to facilitate learning and growth.
Just Culture is not a get out of gaol free card, it takes accountability very seriously, basing it in the science of how humans perform work. It holds individuals accountable for actions are that malicious or reckless, and holds organisations accountable for the systems of work they design.
Just Culture incorporates he knowledge and experience from the discipline of human factors, the study of how humans work within socio-technical systems. Human factors covers areas such as organisational psychology, human physiology, and design. In short, it recognises how various elements of the work environment (organisational culture, equipment, fatigue, procedures etc) influence how people perform work. In particular, these factors can act to increase or reduce the potential for human error.
Based on human factors research, Just Culture makes some important assumptions about how humans work:
People generally (but not always) go to work intending to do a good job
Human beings are fallible, and will from time to time make errors even when trying their best. (See how long you can drive a car without making a single error and you'll soon see what I mean).
Work systems can be designed to minimise the potential for error, but can never fully eliminate it (And so should be designed with this in mind).
The quality of an individual's actions and decisions is not determined solely from their outcomes (A 'poor' decision can lead to a 'good' outcome and vice versa).
Based on these assumptions Just Culture recognises that punishing individuals simply for making errors is unjust, one must look closer. A key principle of Just Culture is that to fairly assess people's decisions and actions human factors must be considered. For example, let's say you a having someone sit quietly in a dark room overnight person with no electronic devices and require them to monitor a sleeping elderly person. What should be done if they break that instruction by falling asleep?
A regulator might say, you have to hold the person accountable through disciplinary action such as a formal warning to deter them and others from falling asleep on duty. Otherwise people might think falling asleep on duty is okay. This approach assumes that the person either chose to go to sleep or failed to take action to prevent themselves from falling asleep. However, this would be to fail to consider the realities of human physiology. In that kind of environment a person could well be actively trying to stay awake, fighting their bodies' natural processes pushing them towards sleep, and despite their best efforts fall asleep. Therefore, deterrence is unlikely to an effective way to prevent reoccurrence, as the problem was not lack of intention to follow the rules, but of ability to do so.
Just Culture in this instance would not remove accountability, but would place the lion's share of it on the organisation for the systems and processes they have created. A more effective way to prevent reoccurrence would be for the organisation to identify any changes it could make to how the work is done to make it easier for the person to stay awake, such as changes to roster patterns or breaks where the person can go into a brightly lit space.
Taking a non-punitive approach means people are going to be much more likely to tell the organisation if they do fall asleep, as they don't fear being punished. This allows the organisation to learn about the issue and make changes to its systems and processes to mitigate that risk, before it results in a bad outcome for an elderly person.
However, Just Culture is not a "no-blame" culture. It recognises there are some instances where individual accountability is appropriate, such as if a person acts with malicious intent or gross recklessness. A Just Culture rightly hold individuals accountable for misconduct such as theft or sexual misconduct. In the above example, if the person had brought a pillow and a blanket to their shift, this evidences a positive intention to sleep in breach of the rules. In that instance under a Just Culture approach individual accountability through disciplinary action would be appropriate. Just Culture does not say there is no role for deterrence, but it reserves it for where it is just and more likely to be effective.
In achieving regulatory compliance, while there will always occasionally be individuals who intentionally or recklessly break rules, requiring a disciplinary response, organisations can put effort into ensuring their systems make it as easy as possible for work to be done according to the rules.
The regulators wanting to improve safety the critical question should be, is the organisation taking reasonable steps to effectively mitigate the impact of human error in their systems and processes, not, are they punishing the front line staff when they make an error.
If individuals don't face disciplinary action when things go wrong it undermines public confidence
As noted above, Just Culture is not a 'blame-free' culture, and certain behaviour such as malicious conduct or gross recklessness does attract a disciplinary response. However, unjustly punishing individuals for outcomes that are primarily rooted in system failures can hardly be the answer. Particularly as doing so will not make the organisation safer, more likely it will have the opposite effect as individuals do their best to hide and cover up their mistakes for fear of punishment.
Rather, the issue of public confidence is best addressed through organisational transparency and accountability. If the organisation is open about what happened, communicates what they are doing to prevent reoccurrence, and explains what just culture is and how it works in their organisation, this goes a long way to reassuring the public that these situations are being treated seriously. This involves engaging with other stakeholders such as regulators, people negatively impacted by what has gone wrong, and the community at large.
So where the event involves serious issues of personal conduct, the organisation can and should demonstrate that it does not tolerate such behaviour. But where the event involves honest errors, especially where there are system failures, the organisation can and should be accountable for those systems, and demonstrate its commitment to learn and change based on what happened. It is important to remember that a staff member who has made an error which has resulted in harm is likely beating themselves up, regardless of whether any punitive action is taken, and may need support.
Restorative Justice processes can also be used to help restore trust and relationships after a bad event. Restorative justice is a complicated topic that I won't go into here, but it involves a process where all stakeholders affected by an event have an opportunity to discuss how they have been affected and to decide what to do to repair that harm.
Closing
Just Culture can be challenging for regulators and lawyers, as it does take a quite different approach to human error and accountability. However, it shares the goals of doing justice and achieving regulatory compliance. There is more that can be said on this topic, but this post is already long enough, so I'll cover some other objections in a future post.
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DISCLAIMER: This blog provides general information only, and is not intended as advice (legal or otherwise) specific to your circumstances. Please contact us if you have any particular questions.
