There is a lot of misunderstanding within business about the burden of proof necessary to take action such as dismissal.
We are all used to crime drama where the test is “beyond reasonable doubt”…. However, employment law is a form of civil law and the burden of proof required is the rather less dramatically phrased, “on the balance of probabilities”. This can be described as, “what is more likely to have happened than not”.
In employment matters you need:
- a reasonable belief that the act of misconduct occurred based on a reasonable investigation of the facts
- to follow a fair and reasonable process, and
- To respond within a range of reasonable responses.
Lots of “reasonableness”, which is probably why it gets confused with the criminal standard of proof, but what does it mean in practice?
Reasonable belief – a Case in Point
A female employee (Emma) alleged that her manager (Tom) had bullied her over an extended period of time. Grievance & disciplinary procedures kicked in. Tom was dismissed and took a claim to the Employment Tribunal.
In this case we looked at the behaviour of both parties over time using witness statements about the specific incidents detailed in the grievance. A view was then taken, based on the evidence, about whether the dismissing manager had a reasonable belief that misconduct had occurred.
The evidence included material confirming the following:
- Tom had on several occasions made jokes, at the expense of Emma, in front of others
- Tom had excluded Emma from conversations
- Tom had made several comments that Emma and others had believed were of a threatening nature towards Emma
- Tom had used his position as a special police constable to make threats towards Emma
- Emma had raised an informal complaint about Tom’s behaviour, but the behaviour had continued.
The dismissing manager concluded, on the balance of evidence available, that Tom did bully Emma over a lengthy period.
Was this a Reasonable Belief?
If this belief was based on a reasonable investigation, which gathered evidence from a range of sources that were believed to be reliable and was appropriately documented, then it can be a reasonable belief. In Emma’s case the investigation revealed plenty of evidence which supported her claim to have been bullied.
Was this a Fair and Reasonable Process?
The company disciplinary process was followed, based on ACAS guidelines, an investigation was completed, relevant notice was given for the hearing, Tom was offered representation, Tom was given an opportunity to challenge the evidence and the dismissing manager was not previously involved in the situation. On this basis it was held to be a fair and reasonable process.
Was the Response Reasonable?
The outcome of this grievance was a disciplinary process that resulted in Tom being dismissed for gross misconduct.
It was found that the misconduct alleged had, on the balance of probabilities, occurred, and this misconduct was clearly identified as gross misconduct in the disciplinary process for which one option open to the company was dismissal.
Alternative responses were considered and were rejected, for example demotion, move to another site, remedial training, meditation. The consideration of these alternatives to dismissal was documented.
At appeal the original decision was upheld.
Tom took a claim to the Employment Tribunal on the basis that he had been unfairly dismissed. He argued that there was insufficient evidence on which to base a decision to dismiss him. .
The company were able to demonstrate to the ET that they had conducted a reasonable investigation, which had informed a fair & reasonable grievance & disciplinary process. The breadth of the evidence relied on, the procedural propriety and the fact consideration of alternative outcomes had been documented all served the company well. The ET was able to find, using the civil standard of proof, that the company were not at fault and the claim failed.
Grievance & disciplinary procedures may sometimes seem onerous, but if the situation is handled professionally from the outset, they are not difficult. If managers are well informed, able to exercise professional discretion and comfortable with the processes involved then the chances of being able to demonstrate a “reasonable” approach are greatly enhanced. Having the confidence to be “reasonable” could save you a lot of money, time and heart-ache.
If you would like some help to manage employment issues in a way that sets you up to have the best chance of winning if matters come to tribunal, contact us on: