Consideration of evidence

Consideration of evidence in a workplace investigation can be a tricky task. There are many factors that require careful consideration, and you need to get it right, because the consequences for the parties can be significant. So, what should you think about?

Credibility. I tend not to judge whether or not a witness is credible, but focus more on the credibility of their evidence. How does it stack up when compared with other evidence? What are the points of difference and similarity? I don’t tend to find a witness ‘not credible’ – which isn’t to say it never happens – but I am more likely to ‘prefer’ the evidence of one witness over another, for which I always give clear reasons.

Reliability. How reliable is the evidence? CCTV or emails are highly reliable sources of evidence. Hearsay, while admissible in a workplace investigation, is less so. Inculpatory vs exculpatory. What evidence supports an adverse finding against the respondent. What evidence doesn’t? All of it needs to be taken into account in your analysis and report.

Balance of probabilities. When weighing your evidence and reaching a finding, the more serious the consequence of the adverse finding, the stronger and more reliable your evidence needs to be.