Just Culture

Restoring Trust and Accountability in Your Organization, Third Edition

Sidney Dekker

• Publisher: CRC Press
• Year: 2018
• ISBN:
  9781317109891
• Edition: 3
• Topic: Technology & Engineering
• Subtopic: Industrial Engineering
• Index: Technology & Engineering

A just culture is a culture of trust, learning and accountability. It is particularly important when an incident has occurred; when something has gone wrong. How do you respond to the people involved? What do you do to minimize the negative impact, and maximize learning? This third edition of Sidney Dekker's extremely successful Just Culture offers new material on restorative justice and ideas about why your people may be breaking rules. Supported by extensive case material, you will learn about safety reporting and honest disclosure, about retributive just culture and about the criminalization of human error. Some suspect a just culture means letting people off the hook. Yet they believe they need to remain able to hold people accountable for undesirable performance. In this new edition, Dekker asks you to look at 'accountability' in different ways. One is by asking which rule was broken, who did it, whether that behavior crossed some line, and what the appropriate consequences should be. In this retributive sense, an 'account' is something you get people to pay, or settle. But who will draw that line? And is the process fair? Another way to approach accountability after an incident is to ask who was hurt. To ask what their needs are. And to explore whose obligation it is to meet those needs. People involved in causing the incident may well want to participate in meeting those needs. In this restorative sense, an 'account' is something you get people to tell, and others to listen to. Learn to look at accountability in different ways and your impact on restoring trust, learning and a sense of humanity in your organization could be enormous.

1	Retributive and Restorative Just Cultures

There are basically two ways to approach a just culture: inside your organization as well as outside of it. One is based on retribution, the other on restoration. When faced with actions that led to a (potentially) bad outcome

1. Retribution imposes a deserved and proportional punishment.

2. Restoration repairs the trust and relationships that were damaged.

Retributive and restorative processes ask very different questions in the wake of an incident. Consider this when you are trying to build a just culture of trust and accountability in your organization.

• Retribution

• Which rule has been broken?

• Who did it?

• How bad was the infraction, and so what does the person deserve?

• Which manager, department, or authority gets to decide?

• Restoration

• Who has been (potentially) hurt?

• What are their needs?

• Whose obligation is it to meet those needs?

• What role does the community play in learning from the event?

Let’s first look at retributive and restorative approaches to justice separately, to see how each tries to generate accountability, trust, and learning. Then we’ll compare and contrast the two. You will find that the two approaches don’t have to be mutually exclusive. In your own organization, you might well be able to create a mix of responses that imports the best of both worlds.

RETRIBUTIVE JUST CULTURE

Retributive justice is as old as humanity itself. It is easily recognizable in varieties of ancient law (e.g., the law of “measure for a measure”). Retribution considers punishment, if proportionate, to be a just response to a sanctionable action and to be an appropriate deterrent. Retributive justice wants the offender to pay something back, to forfeit something in return for what he or she did. Retribution is not vengeance. Retribution is not supposed to be directed at the person, but at the actions (the wrongs). It is supposed to come with inherent limits (i.e., there is only so much punishment that you can exact), it involves no pleasure at the suffering or pain of others, and it is constrained and governed by procedural standards.

SHADES OF RETRIBUTION

A popularized way to think about a just culture is based on shades of retribution. This type of just culture, introduced in hospitals, airlines, oil companies, and other organizations over the past years, understands that it is foolish to expect fallible people to be perfect. These organizations find it important to learn from mistakes, and their approach to just culture wants to hold people accountable not necessarily for the outcomes they create, but for the choices they (supposedly) make while doing their work. When things go wrong, the consequences should depend on the choices that people made in the lead-up. Such a just culture often distinguishes among a minimum of three types of actions:

• An honest mistake is an inadvertent lapse, slip, or mistake. It was unintended and can happen to anyone in those circumstances.

• At-risk behavior is a choice that increases a risk that is not recognized, or mistakenly believed to be justified.

• Negligence or recklessness is a choice to consciously disregard or take a substantial and unjustified risk.

Those who have adopted such a “just culture” believe that different choices deserve different consequences—different shades of retribution. Honest mistakes require compassion and an investigation into the conditions that triggered them. At-risk behavior calls for coaching and warnings. Recklessness must lead to disciplinary action, including suspension, dismissal, or referral to other authorities. The idea is that employees who feel that they will be treated fairly—that their honest mistakes will not be punished—are more inclined to report mishaps and failures. But will they?

“You have nothing to fear if you have done nothing wrong.”

What if a prosecutor would say this to respond to concerns from the community of practitioners? It might be said to assuage concerns from the sector that human errors—normal, honest mistakes—are being converted into criminal behavior by the prosecutor’s office. This is not just hypothetical, of course. Practitioners have been fined or charged for rule infractions that were part and parcel of getting the job done. They and their colleagues may feel some anxiety as a result. Can they supply incident data in good faith, or are the data going to be used against them? Are there enough protections against the prying of a prosecutorial office? Don’t worry, a prosecutor might say in reply. Trust me. There is nothing to fear if you have done nothing wrong. I can judge right from wrong. I know a willful violation, or negligence, or a destructive act when I see it.

But does he? Does anybody?

Retributive just cultures draw a line somewhere between acceptable and unacceptable behavior. A willful violation is not acceptable. An honest mistake is. Risk-taking behavior probably isn’t. Negligence and recklessness are certainly not. And if what you have done is acceptable—if you have done nothing wrong—you have nothing to fear. A just culture definition in use in air traffic control, for example, promises and warns simultaneously that “Front-line operators or others are not punished for actions, omissions or decisions taken by them that are commensurate with their experience and training, but where gross negligence, willful violations, and destructive acts are not tolerated.”¹⁸

The idea of a line makes intuitive sense. If just cultures are to protect people against being sanctioned for honest mistakes (when they’ve done nothing wrong), then some space must be reserved for mistakes that are not “honest” (in case they have done something wrong). Consequently, all proposals for a just culture emphasize the establishment of, and consensus around, some kind of line between legitimate and illegitimate behavior: “In a just culture, staff can differentiate between acceptable and unacceptable acts.”¹⁹ There is not a single proposal for just cultures—indeed, not a single appeal to the need to learn from failure in aviation—that does not build in some kind of escape clause into the realm of essentially negligent, unwanted, illegitimate behavior. An environment of impunity, the argument continues, would neither move people to act prudently nor compel them to report errors or deviations. After all, if there is no line, then “anything goes.” So why report anything? This is not good for people’s morale, for the credibility of management, or for learning from mistakes and near misses.

So calls for some kind of border that separates tolerable from culpable behavior make intuitive sense. And ideas on just culture often center on its embrace and clarity: “A ‘no-blame’ culture is neither feasible nor desirable. Most people desire some level of accountability when a mishap occurs. In a Just Culture environment the culpability line is more clearly drawn.”¹³ Another argument for the line is that the public must be protected against intentional misbehavior or criminal acts, and that the application of justice is a prime vehicle for such protection.

A recent directive from the European Union (2003/42/EC) governs occurrence reporting in civil aviation. This directive has a qualification: a state must not institute legal proceedings against those who send in incident reports, apart from cases of gross negligence. But who decides what counts as “gross negligence”? The same state, of course. Via its prosecutors, investigating magistrates, and judges.

The directive, as does much guidance on just culture today, seems to assume that cases of “gross negligence” jump out by their very nature, that “willful violations” represent an obvious category, distinct from violations that are somehow not “willful.” It assumes that a manager, a prosecutor, a judge, or any other authority can recognize—objectively, unarguably—willful violations, negligence, or destructive acts.

If we want to draw a line, we have to be clear about what falls on either side of it. Otherwise there is no point in a line—then the distinction between acceptable and unacceptable behavior would be one big blur. Willful violations, say many people, clearly fall on the “unacceptable” side of the line. Negligence does too. But what is negligence then? To begin with, look at this definition:

Negligence is conduct that falls below the standard required as normal in the community. It applies to a person who fails to use the reasonable level of skill expected of a person engaged in that particular activity, whether by omitting to do something that a prudent and reasonable person would do in the circumstances or by doing something that no prudent or reasonable person would have done in the circumstances. To raise a question of negligence, there needs to be a duty of care on the person, and harm must be caused by the negligent action. In other words, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can reasonably be foreseen to be likely to cause harm to persons or property. If, as a result of a failure to act in this reasonably skillful way, harm/injury/damage is caused to a person or property, the person whose action caused the harm is negligent.¹³

A few concerns come to mind. First, the definition is long. Second, it is actually not really a definition. It does not capture the essential or finite properties of “negligence.” It does not allow you to grab “negligent behavior” and put it on the unacceptable side of the line. Instead, it presents an array of questions and judgments that you need to make. Rather than this solving the problem of what is “negligence” for you, you now have to solve a larger number of perhaps equally intractable problems instead:

• What is the “normal standard”?

• How far is “below”?

• What is “reasonably skillful”?

• What is “reasonable care”?

• What is “prudent”?

• Was harm indeed “caused by the negligent action”?

So instead of clarifying which operational behavior is “negligent,” this shows just how complex the issue is. And how much of a judgment call it is. In fact, there is an amazing array of judgment calls to be made. Just see if you, for your own work, can (objectively, unarguably) define concepts such as “normal in the community,” “a reasonable level of skill,” “a prudent person,” or that you could achieve “a foresight that harm may likely result.” What, really, is normal (objectively, unarguably)? Or prudent, or reasonable (objectively, unarguably)? Don’t we all want to improve safety precisely because the activity we are engaged in can result in harm? And, of course, research showed us a long time ago that once we know the outcome, we overestimate the amount of foresight we, or someone else, could and should have had.²⁰

Just responses to bad events are not a matter of matching the inherent properties of undesirable behavior with appropriate pigeonholing and a fitting punitive level. It involves the hard work of deciding what story to tell and whether to see something as reckless, as at-risk, or as erroneous. Merely supplying the categories leaves this issue unresolved. It boils down to fairly empty guidance on how to create a just culture. It also creates an ethical issue: assigning an act to a category will forever be a judgment.

It is not that making such judgments is impossible. In fact, we do this often. It is, however, important to remember that these are indeed judgments. They are not objective and not indisputable. To think that there comes a clear, uncontested point at which everybody says, “Yes, now the line has been crossed, this is negligence,” is an illusion. What is “normal” versus “negligence” in a community, or “a reasonable level of skill,” versus “recklessness” is infinitely negotiable. You can never really close the debate on this. As a result, there really is no line. There only are people who draw it.

What matters is not whether some acts are so essentially negligent as to warrant serious consequences. What matters is which authorities we in society (or you in your organization) rely on to decide whether acts should be seen as negligent or not. Who draws your line?

Assigning acts to categories becomes a matter of power. Who has the power to tell the story, to say that behavior is one thing and not the other? And who has the power to decide on the response? It is a power that can finesse and fudge a whole range of organizational, emotional, and personal issues. A conclusion of wrongdoing could, for instance, be underwritten by a hospital’s risk manager’s greatest fears (of liability, loss of reputation or political clout) or by how a manager is held accountable in turn for evidence of trouble in the managed unit.

Suppose nurses take to scanning the barcode label that one of their colleagues pasted on the wall behind the patient because it actually reads well, and is always easy to find as opposed to others. This may have become all but normal practice—everybody does it because everybody always has the next patient, and the next, and the medication barcode scanners are of such poor quality that they can’t read anything except flat and high-contrast labels (indeed, labels pasted ...