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?
A good investigation report will include:
- Terms of Reference: The scope and objectives of the investigation.
- Details of the Complainant and Respondent: Information about the parties involved.
- Summary of the Investigation Process: An overview of how the investigation was conducted.
- Evidence Collected: A detailed breakdown of the evidence gathered, including any evidence that was not collected.
- Interviews Conducted: A list of people interviewed as part of the investigation process.
- Summary of Matters Under Investigation: A concise summary of the issues investigated.
- Findings: Detailed responses from the investigating officer regarding their findings.
- Conclusions: The investigating officer's conclusions based on the evidence.
- Recommendations: The investigating officer's recommendations for next steps.
Related: The do’s and don’ts of workplace investigations
What happens after a work investigation?
At the end of a workplace investigation, the investigating officer will produce a comprehensive investigation outcome report.
After the report is completed, it is up to the employer to review the findings and recommendations and decide on the appropriate course of action based on the investigation’s outcome.
Related: How to conduct Disciplinary Procedures
Is an employee entitled to see an investigation report?
Employees have a right to see any parts of a report that contains information about them, however they should not be able to view information belonging to others.
Do I need a solicitor for a workplace investigation?
Although you don’t necessarily ‘need’ a solicitor, lawyer, or barrister to conduct a workplace investigation; it is certainly recommended.
A credible investigator with appropriate training and experience will remain impartial, follow best practice, ensure legal compliance and assist in especially complex cases with expertise and thorough documentation.
Above all else, instructing a good investigator ensures a fair investigation, allowing your organisation to address issues effectively and maintain trust with staff.
Why choose Frettens?
At Frettens, our specialist Workplace Investigation Team prioritises honesty and meticulous attention to detail. We won’t tell you what you want to hear; we’ll tell you the truth and provide all the facts you need to make a sensible, informed decision.
Our investigators are professionally trained, experienced, accredited and operate in a regulated sector, specialising in legal procedure, investigative interviewing, report writing and investigative practice.
By choosing Frettens, you benefit from a team dedicated to providing clarity and detailed analysis, empowering you to make confident decisions and maintain a fair and compliant workplace.
If you would like to speak to one of our professionals, you can call us on 01202 499255, or fill out the form at the top of this page, for a free initial chat.
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