Applying the burden of proof

A guide to conducting workplace investigations

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Chapter five: Applying the burden of proof

In workplace investigations, the process can be just as important as the outcome. A key part of that process is understanding what you are looking for as an investigator, where the boundaries are, and specifically, what the burden of proof is and how it applies at each stage of the process. Getting this right is essential to ensure that the investigation is fair, consistent and proportionate.

In workplace investigations, there are two main thresholds to keep in mind: the “case to answer” test, which applies during the investigation, and the “balance of probabilities” standard, which applies at the hearing or decision stage.

1. Investigation stage: is there a case to answer?

At the start of a workplace investigation, a fact finding exercise needs to be conducted to determine whether a formal further process is justified. This stage is about gathering information, not making conclusions or determinations about guilt or misconduct. There is no final decision being made at this stage. The question that should be asked is whether there is a case to answer: is there enough credible information to suggest that the allegation might have some merit?

There is a deliberately low threshold here because the purpose is simply to assess whether further scrutiny is appropriate. Having a case to answer also does not mean that the allegations have been proven. The question is whether a reasonable person, looking at the available evidence, would conclude that it is worth examining the matter more closely in a formal setting.

An example of what might trigger there being a case to answer might be a written complaint, email records, comments from an employee or other documents pointing towards a possible wrongdoing.

Once an initial review has concluded that there is a case to answer, the next step will be a more formal workplace investigation. This is where the more robust burden of proof comes in: the balance of probabilities.

This means that, after reviewing everything available, the decision maker believes that it is more likely than not that the alleged conduct occurred. This does not require certainty and there is no requirement for evidence “beyond reasonable doubt”. However an outcome does need to be reached following a fair and reasoned assessment of the facts and information available.

Situations may arise where there is a true balance of evidence. In this case, according to the balance of probabilities test, the allegation should not be upheld as it is not more likely than not. This means that sometimes, the evidence available will not be strong enough to justify action. Investigators should be cautious of taking action without satisfying themselves of this test first. As always, a decision must be grounded in what the evidence actually supports, not on assumptions, impressions or a desire to err on the side of caution.

Why it matters

Getting the burden of proof right at each stage of an investigation, and documenting this throughout, is an important safeguard for both employees and employers. It protects employees from unfair treatment, protects managers and investigators from hasty decisions, and protects the organisation from grievances and tribunal claims by ensuring that any actions taken can be confidently justified if they are ever questioned or reviewed, whether internally or externally.

When investigators and HR departments apply the standards of proof appropriately, the investigation process should be fair, transparent and trustworthy. It is therefore crucial that everyone involved – investigators, decision makers and even the employees – understand what is expected at each stage of the process.

In summary

Ultimately, investigations and decisions are only as good as the evidence they are built on. Considering that evidence carefully and the burden of proof that is needed at each stage reinforces a high-quality, effective and reliable investigation.

Chapter six: Top tips and next steps

Once the workplace investigation has concluded, the next phase is critical to ensuring that the process leads to fair, effective, and legally sound outcomes.

Read chapter six

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