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HR Tip – burden of proof


These questions are being answered by Learn HR, a market leader in the provision of HR and payroll training and nationally-recognised professional qualifications.

Q: We recently wanted to dismiss an employee for fiddling his expenses but we didn't have absolute proof, so let him off. Was this the right thing to do?

A: Had the employee been prosecuted in the criminal court the prosecution would have had to satisfy the judge or jury that the person was guilty "beyond all reasonable doubt". In other words, a person accused of a criminal offence would be given the benefit of any doubt and found "not guilty".

However, in the workplace, the burden of proof is less demanding and is evenly balanced. The employer is entitled to determine guilt or innocence on what is called "the balance of probability".

If you are faced with a similar case in future, you should first investigate thoroughly and make careful notes of your findings. If you believe there is a case to answer, you should summon the employee to a formal disciplinary hearing and conduct it in accordance with the ACAS Code of Practice. Ideally, the investigation and disciplinary hearing should be conducted by different people, but this is not necessary if impracticable.

Present the evidence against the employee and listen carefully to his or her response. Then decide whether you believe the employee is more likely than not to be guilty. If you believe so, ask yourself whether there are good grounds for this belief.

The answer should be based on objective criteria such as the result of the investigation, the evidence of reliable witnesses or the failure of the accused employee to give a satisfactory account. The fact that you think the employee looks shifty should be disregarded.

If you have satisfied all these criteria, even though the evidence may not be conclusive, you are entitled to find the employee guilty and apply any appropriate sanction including, for example, dismissal.

If subsequent evidence arises that proves the employee innocent but that you could not be expected to have discovered during your enquiry, the employee would not win a case of unfair dismissal against you because you acted properly at the time.

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