Procedural Justice

Definition of procedural justice

Procedural justice (العدالة الإجرائية), also called procedural fairness, is an employee’s judgement on the way a decision about them was made: whether the rule was known before the decision, whether it was applied to them as it is applied to others, and whether they were heard before the matter was settled.

Its subject is the route, not where the route ends. An employee may find a decision unwelcome and still regard the route to it as sound. An employee may also receive a decision in their favour that was reached by a route they do not trust, and the unease remains, because they know the same route may be taken against them later.

Why procedural justice looks at the route and not only the outcome

A work decision may not satisfy everyone it touches. There is one promotion and three candidates; the budget is limited and the requests exceed it. If satisfaction depended on the outcome alone, an organisation would lose the acceptance of everyone whose request was declined, in every cycle.

Two things keep acceptance in place when the outcome is unwelcome. The person affected understands the basis on which the decision was made, and sees the same basis applied to others. Where both are missing, the employee supplies an explanation of their own, and the explanation they supply can be favouritism or a manager’s mood.

What makes a procedure fair in the eyes of those subject to it

The elements below describe what people regard as fair when a decision is made about them.

• A rule announced before the event, not one inferred after it. A rule written after the event looks like a justification, however correct it may be.
• Consistent application. Similar cases are handled alike, and any difference is explained by a difference in the case, not by a difference in the people.
• A neutral decision maker. Someone who was a party to the incident does not decide it.
• Accurate information on which to base the decision, rather than one party’s account.
• A hearing for the person concerned before the matter is settled, with enough time to prepare, not at the moment they are told.
• A route to correction if it emerges that the decision rested on an error.
• Reasons given to the person themselves, in language they understand. A decision with reasons can be borne; an unexplained decision lingers.

Procedural justice and the minimum the Labor Law sets before any penalty

The list above describes what people regard as fair. Beneath it lies a floor that disciplinary procedure in an establishment may not go below. Article 71 of the Saudi Labor Law (نظام العمل) provides that no disciplinary penalty may be imposed on a worker until the worker has been notified in writing of what is alleged against them, has been questioned, and has had their defence investigated, with all of this recorded in a minute placed in their own file.

Article 66 of the Labor Law confines disciplinary penalties to a closed list, and Article 67 of the Labor Law bars any penalty not provided for in the Labor Law or in the establishment’s work regulation (لائحة تنظيم العمل). How that regulation is prepared, and what the Labor Law delegates to it, is covered in our guide to the work organisation regulation.

The two levels differ in what they measure. The text sets the least that must be done. Procedural justice describes what leads an employee to accept the outcome. An establishment that completed the steps in form and then announced the decision without reasons has met the duty but has not produced acceptance.

Procedural justice in the four steps of Article 71 of the Labor Law

Article 71 of the Labor Law sets out four steps that must be completed before a penalty is imposed. Each is a duty in its own right, not a description of the one before it.

• Notifying the worker in writing of what is alleged against them. Writing is a condition in the text. The point is that the person concerned knows what they will be asked about before they are asked, not that they learn it during the questioning.
• Questioning the worker, that is, asking them about what is alleged.
• Investigating their defence. The text says «تحقيق دفاعه», investigating the defence, and not merely hearing it. The difference is practical. Hearing is satisfied once the worker has spoken; investigation requires that what they said is examined and checked. A minute recording that the defence was listened to, without showing what was done with it, describes a lighter step than the one in the text.
• Recording all of this in a minute placed in the worker’s own file. Placing the minute in the file is part of the step itself, not an administrative arrangement that follows it. What that file holds more generally is covered under employee file.

The order of these steps matches the order of what was described above as fair in the eyes of the person subject to a decision: knowledge before questioning, questioning before a decision, and a written record that can be consulted afterwards. The text does not introduce a standard foreign to what people regard as fair. It sets the minimum of that standard as a duty.

In the sources we reviewed, we found no published period between the written notification and the questioning on which to base a recommendation. The text requires the written notification to come before the questioning and names no interval. We also found no prescribed form for the minute: the duty is to record what took place and to place the record in the worker’s own file.

Procedural justice and the oral questioning exception

The text does not stop at the four steps. Article 71 of the Labor Law also allows the questioning to be oral in minor violations whose penalty goes no further than a warning or a fine deducting no more than one day’s wage, provided this is recorded in the minute. The exception carries three qualifications, the first of which can be lost when the article is summarised.

• The limit is set by the penalty. It does not depend on how the violation is described. The person imposing the penalty cannot call a violation minor and then build on that description; the test is the penalty imposed, which must be a warning or a fine of no more than one day’s wage.
• Anything beyond that limit falls outside the exception. A fine above one day’s wage is not covered, and neither is any heavier penalty, such as suspension without pay, deferral of a raise or a promotion, or dismissal.
• The minute is required on both routes. The exception removes the requirement of writing from the questioning. It does not remove the record, and the text states plainly that oral questioning is conditional on its being recorded in the minute.

The one day ceiling is measured on the actual wage (الأجر الفعلي). Article 71 of the Labor Law uses the word wage there without qualification, and Article 2 of the Labor Law provides that the wage, where unqualified, means the actual wage, so the ceiling is computed on the actual wage and not on the basic wage. How a warning given by word of mouth relates to this exception is examined under verbal warning.

Procedural justice in practice: two similar cases on two tracks

Two employees arrive late for work by the same amount. The establishment decides on a warning for the first and a fine of two days’ actual wage for the second. The first may be questioned orally, provided this is recorded in the minute. The second is outside the exception, because two days’ wage is above the one day ceiling, so the full sequence applies: written notification of what is alleged, then questioning, then investigation of the defence, then the minute.

The difference between the two tracks did not arise from a difference in the incident or in the two people. It arose from the size of the penalty alone. Anyone who chooses the track by the gravity of the violation as they themselves assess it has reversed the rule, because the text ties the exception to the penalty imposed and not to the judgement of whoever imposes it.

The comparison is stated in days of wage rather than in riyals. We found no general rule in the Labor Law or in its Implementing Regulation (اللائحة التنفيذية) setting the divisor used to convert a monthly wage into a day’s wage, so a riyal figure for one day’s wage would rest on a choice the text does not make.

Procedural justice, Article 71 and Article 8 of the Labor Law

Article 71 of the Labor Law states a prohibition: no penalty may be imposed before these steps. It does not state what follows if a penalty is imposed without them, and in the sources we reviewed, we found no provision setting that consequence. So we do not write that such a penalty lapses or is void, and we do not write that it stands. The duty is stated; the consequence of breaching it is not something we can settle.

The distinction is of use first to whoever designs the procedure inside the establishment. The steps are completed not to avoid a known consequence, but because the text requires them from the outset.

Nullity in the Labor Law comes from Article 8 of the Labor Law, which provides two things: any term that contradicts the Labor Law is void, and any release or settlement of the worker’s rights arising under the Labor Law during the life of the employment contract is also void, unless it is more favourable to the worker.

Article 8 of the Labor Law voids a term, not a decision, and that is where the confusion arises. It follows that if an employee signed a document waiving the steps of Article 71 of the Labor Law, the signature would not take the place of those steps, because it would be a release of a right arising under the Labor Law during the life of the contract. A penalty imposed without the steps, with no agreed term behind it, is a different case: its consequence is not stated in either provision, and in the sources we reviewed, we found no provision that states it.

The two provisions therefore do different work. Article 71 of the Labor Law forbids imposing a penalty before the steps, and Article 8 of the Labor Law voids what is agreed contrary to the Labor Law. Attributing nullity to Article 71 of the Labor Law attributes it to a provision that does not say so, even where the conclusion may be correct on another question.

The provisions relied on are those of the Saudi Labor Law as published by the Ministry of Human Resources and Social Development: Article 2 (the wage, where unqualified, is the actual wage), Article 8 (terms and releases that conflict with the Labor Law), Article 66 (the closed list of penalties), Article 67 (no penalty outside the Labor Law or the work regulation) and Article 71 (the procedure before a penalty, and the oral questioning exception). Royal Decree M/44 amended a number of provisions of the Labor Law. That decree did not amend Articles 66, 67 or 71 of the Labor Law, and while it added definitions to Article 2 of the Labor Law, it left the definitions of the basic wage and the actual wage unchanged.

Where procedural justice appears outside discipline

• Performance ratings. Here procedural justice takes the form of performance calibration, in which the appraisers meet before ratings are confirmed to agree what each rating means and to examine the differences between their distributions. It is consistency in the route, and it comes before any employee is told their rating.
• Pay. Two questions have to be kept apart. Distributive justice asks about the outcome, and internal pay equity asks whether a pay difference traces back to reasons connected with the work. Procedural justice asks about the route by which raises are decided, who decides them and by what rule. Either the outcome or the route can be sound while the other is not.
• Promotion and internal moves. Here, announcing a vacancy internally before it is filled can be the difference between a decision that is accepted and a decision that is explained away.
• Reductions in the workforce. A layoff is a sensitive setting because the outcome itself is harsh, and the clarity of the criterion may be all that is left on which acceptance can rest.

What grievances reveal about procedural justice

A grievance, a formal complaint lodged through a declared internal route that is expected to end in a written reply, is a visible signal of procedural justice. Repeated grievances against decisions of one kind point to the route, not to the people.

A low number of grievances is not evidence the other way. It can mean two opposite things: a procedure that people accept, or a route nobody trusts and so nobody uses. The two are told apart not by counting grievances but by asking those who went through the decision.

In the sources we reviewed, we found no measurement of the effect of procedural justice on employee retention or performance on which to base a figure. What is set out here describes what makes a decision acceptable; it is not a measured effect.

What undermines procedural justice

• An exception granted without reasons. It undoes a rule that was applied to ten people before it.
• A token hearing held after the decision has in fact been made. It can do more harm than no hearing at all, because it tells the employee that the form was the whole point.
• A rule that changes during the cycle. An employee who planned against a criterion announced at the start of the year and was then assessed against a criterion amended at the end of it was not assessed on what they had committed to.
• Reasons given to the group, not to the person. A general message explaining the policy does not answer someone who asks why the decision fell on them.
• Referring everything to the text. Citing the article is correct but not enough, because the employee is asking how it applies to their own case.

Where procedural justice is applied differently

• The small establishment. Here the person who decides may be the person who witnessed the incident. Neutrality then cannot rest on a separate body. It rests on writing down what happened and putting it to the person concerned before a decision, so that the matter is taken as it actually was and not on a single account.
• Teams spread across distant sites. A decision is made at one site and its effect is felt at another. What can break down here is consistent application, because each site develops local customs and does not see what happens at the others.
• Decisions shared by several managers. Each may assume that giving the reasons falls to someone else, and the decision goes out with nobody who can be asked about it.
• Temporary and seasonal roles. A short engagement can tempt an organisation to lighten the procedure. Its length does not change what the text sets as the minimum before a penalty is imposed.

This is an explanation of the concept and of the statutory provisions cited, not legal advice.

Related terms

• Positive Discipline
• Ombudsman
• Demotion
• Verbal Warning
• Employee File