In workplace investigations, the rules and procedures used in civil and criminal courts don't apply. However, investigators often use the civil standard of proof to decide if an issue or complaint is valid.
But, what exactly is the burden of proof? How does an investigator make a decision? And what do you, as an employer, need to be careful of?
Head of HR Services Nathan Andrews details everything you need to know…
What is the burden of proof in HR investigations?
In practice, the burden of proof in workplace investigations means deciding if something is more likely to have happened than not. This is known as the "balance of probabilities."
If there is a 50% chance something happened, it doesn’t meet the standard. If there's a 51% chance, it does. While this seems straightforward, evaluating evidence is more complex.
How does a workplace investigator make a decision?
An investigator's primary role is not to make final decisions on disciplinary actions or outcomes, instead, they serve as impartial factfinders. The investigator's job is to establish a clear, unbiased account of the events by carefully gathering and analysing evidence.
To do this, an experienced investigator will apply the "balance of probabilities" test. This legal standard requires the investigator to decide whether it is more likely than not that an event occurred.
Unlike the criminal standard of "beyond a reasonable doubt," the balance of probabilities is a lower threshold and is appropriate for civil matters, including workplace investigations.
Related: Workplace Investigations – Advice for employers and HR professionals
What happens once an investigator submits their report?
An investigator will submit their report to the appropriate decision-maker within your company, such as a member of the senior management team. The decision-maker then reviews the findings and decides what actions should be taken.
So, while the investigator plays an important role in uncovering the truth and providing a factual basis for decision-making, they do not make the ultimate decisions.
What evidence do investigators look for?
A skilled investigator will actively seek evidence that both supports and contradicts the allegations made to establish what did or did not take place.
Although there is no set list of evidence needed, evidence may include:
- Witness statements,
- Emails,
- Documents,
- CCTV footage,
- Receipts,
- Computer data,
- Phone records, or
- Attendance logs.
Investigators must obtain this information legally, adhering to data protection laws and other legal obligations.
As the investigation unfolds, new evidence may emerge. However, the investigator's focus must remain on what is reasonably relevant to the specific matter under investigation.
Related: What are the steps involved in a workplace investigation?
What does a good investigation report look like?
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