All workplaces, large or small, hierarchical or not, and regardless of sector have one thing in common: its workforce. People’s personalities, characters, life histories and work experiences all shape their communications and relationships in the workplace, and, sometimes, these disparate aspects of people’s interactions can cause tension or friction; or lead to behaviours that are unwelcome or unlawful.
Investigators can be called in to investigate and sometimes determine grievance allegations, or perhaps consider whether disciplinary proceedings should commence against an individual. These investigations have the capacity to have a profound impact on the individuals concerned, as well as the wider workplace. Accordingly, in such a dynamic landscape of relationships and communications, facts and circumstances, how can an investigator best reach a fair and balanced conclusion?
The standard of proof that a workplace investigator works to is known as the ‘balance of probabilities’, which considers whether an event was more likely than not to have occurred, taking into account the evidence available. This is sometimes expressed in percentage terms as a 51% or more likely chance that an event occurred than not. Sitting on the fence is rarely an option for workplace investigators.
The process of reaching any decision starts first with the available tangible evidence; collecting and codifying emails, meeting notes, voice recordings, and so on, as well as noting their provenance. Contemporaneous documents and records are generally a reliable starting point, although it is worthwhile considering the role and motivations of the author of the document in question. Often, documents from a variety of sources can help piece together a previously patchy or biased account.
At this point, the more intangible aspects of the investigation come into consideration. Matters such as the inherent probability of an event occurring, and circumstantial evidence supporting or disproving an allegation can be taken into account. In a family law case, Re B [2008] UKHL 35, the Court suggested that, for example, deliberately causing a physical injury was usually less likely than accidentally causing a physical injury. So, an allegation that an employee deliberately pushed their colleague down a flight of stairs could include a consideration of the inherent likelihood of that possibility, supplemented by tangible evidence such as CCTV footage, and circumstantial evidence such as perhaps the key cards of both employees being used to enter the stairwell at a similar time; such circumstantial evidence would support the allegation but would be insufficient on its own to prove it.
It is tempting to think of investigations as simply piecing together facts and events, but without context, such data can be misleading. Context comes from the oral evidence of witnesses, and therefore, an investigator’s impression of the credibility and reliability of the witnesses providing that context will be critical, particularly in circumstances where it is one person’s word against another’s.
There is also a role for oral evidence from individuals not directly involved in the events under investigation but who have a perspective or insight to share about the background to the situation, or the complex relationships that can form in workplaces, or about the character or temperament of another witness, that can be useful in building a picture and analysing the other evidence that has been gathered.
A thorough investigation process requires that witnesses are given the opportunity to be heard; to present their version of events and have their evidence weighed, with the investigator deliberately putting aside any personal opinion or bias relating to the facts and circumstances under consideration. This is the cornerstone of a compassionate, independent investigation that puts people first in the aim of reaching a fair conclusion, on the balance of probabilities.
ibex gale are leading experts in workplace investigations. If you’d like a confidential discussion about our services, please get in touch at contactus@ibexgale.com or on 0117 251 0566.
Author: Rana Tandon, Associate
