Balance of probability and burden of proof - how does it work in employment law?

[TheIllegalBeagle]

Can you clarify a few things for me, legal people? This is a workplace rather than courtroom situation.

If Tom accuses Mike of something at work (a non-injurious thing but it would be an act of misconduct), but there were no witnesses or evidence) is it up to Tom to prove it DID happen, or up to Mike to prove it didn't? What does 'burden of proof' mean in these circumstances?

In making a judgement, would the Employer need to hear evidence from both parties, or would a short written statement based on a ten minute interview with a line manager, from the accuser (who has no witnesses or evidence) be sufficient?

What if it didn't happen? There's no evidence and no witnesses. Mike spends two hours being interrogated by an external person with no personal knowledge of either Mike or Tom, who then decides it did happen, based on a short written statement Tom wrote. Tom is an unreliable witness and has lied. Mike, meanwhile, gets dismissed.

The external 'judge' makes this decision on 'balance of probability' as Mike may have done a similar thing in the past, albeit when under great pressure, which Mike explains at length.

Is it fair or just to make a decision of such magnitude without having spoken to the accuser? Grateful for any comments about this. Having to keep things vague (and Mike) for obvious reasons.

Speak to Acas pronto.

Hi, the burden of proof in these situations is balance of probabilities (as you say). This means that for someone to be subjected to disciplinary action (up to and including summary dismissal), the person investigating has to come to the conclusion, based on the evidence, that what they are accused of is MORE LIKELY THAN NOT to have happened and this has to be a reasonable conclusion to come to. Has this person got >2 years service? If so, the employer must follow statutory guidelines, including giving the right of appeal. Can you give any more details?

Mike has worked for the company for over ten years and has been internally promoted several times in that period. Mike's conduct has been impeccable. A change of management last year saw Mike taking on several other people's work due to long term sickness and impossible demands placed upon him and he began to experience great stress.

Instead of supporting Mike, the company have used Mike's stress as a stick to beat him with, subtly suggesting he is too unstable to do his job. Following a meeting last year where his manager berated him for not completing his excessive workload, Mike was accused of using inappropriate language while under stress.

Mike has a long term history of anxiety and depression but takes medication and successfully self-manages this with no effect on his work. The ongoing stress at work exacerbated his symptoms - but not to the extent he was unfit for work. Far from supporting him, the company are suggesting that he is wildly unstable and unmanageable, which is not the case.

Tom has now accused Mike of inappropriate language, saying that Mike was clearly stressed. Mike knows it did not happen.

Mike has the right to appeal the decision but feels the company is trying to manage him out because of this alleged emotional instability.

Ah, okay. This sounds v complex. The good news is he has employment rights (before 2 years you have v few). Also, he has a condition which could be classed as a disability under the Equality Act, so is protected from discrimination for that. My personal view is that summary dismissal for swearing is disproportionately harsh in any event, unless he was already subject to disciplinary action (did he have any live warnings in place?). I think Mike needs to decide what he wants - does he want to fight to keep his job, or does he want to negotiate a pay-off for leaving? I would hope the employer would be open to the latter, given I would consider him a high risk for a potential tribunal case. In any event, he should pursue the appeal process and also consider raising a grievance first (always exhaust internal processes first). Have you got legal cover as part of any of your insurances? Would be worth speaking to a solicitor if you're able. Alternatively ACAS are great and can also help conciliate with the employer. I work in HR and if I were the employer, I would feel nervous. It sounds as if Mike may be in a relatively strong position (albeit I understand it's a horrendous thing to have to go through). Personally, if the employment relationship has broken down, I would be looking to pursue a financial settlement (but don't tell them that!) in exchange for a settlement agreement, but he will need help negotiating that to make sure he gets the best deal. Good luck! Happy to help offline if I can 😊

@jossbackpack

Ah, okay. This sounds v complex. The good news is he has employment rights (before 2 years you have v few). Also, he has a condition which could be classed as a disability under the Equality Act, so is protected from discrimination for that. My personal view is that summary dismissal for swearing is disproportionately harsh in any event, unless he was already subject to disciplinary action (did he have any live warnings in place?). I think Mike needs to decide what he wants - does he want to fight to keep his job, or does he want to negotiate a pay-off for leaving? I would hope the employer would be open to the latter, given I would consider him a high risk for a potential tribunal case. In any event, he should pursue the appeal process and also consider raising a grievance first (always exhaust internal processes first). Have you got legal cover as part of any of your insurances? Would be worth speaking to a solicitor if you're able. Alternatively ACAS are great and can also help conciliate with the employer. I work in HR and if I were the employer, I would feel nervous. It sounds as if Mike may be in a relatively strong position (albeit I understand it's a horrendous thing to have to go through). Personally, if the employment relationship has broken down, I would be looking to pursue a financial settlement (but don't tell them that!) in exchange for a settlement agreement, but he will need help negotiating that to make sure he gets the best deal. Good luck! Happy to help offline if I can 😊

Hi jossbackpack! Are you an employment law solicitor??

Going back to the original burden of proof question. In criminal court the burden of proof is “beyond all reasonable doubt”.In civil courts the burden of proof comes down to the “balance of probability”.

However in employment tribunal or otherwise employment matters, the burden of proof is only for the employer to have carried out a fair investigation and to believe and have reasonable grounds to believe that the employee committed a said act. The legal precedent for the burden of proof in employment situations is Birchall vs BHS 1978.

There is no such thing as a “balance of probability” burden of proof in employment law.

I don’t have a view on whether swearing is sufficient grounds for dismissal, it would depend on the context e.g. how loud he was, now threatening he was and were their customers around etc. A previous warning for similar behaviour in the past is likely to result in more severe consequences but equally the employer does not need to go through a process of verbal warning, written warning, second written warning etc, they can go immediately to whatever step is considered appropriate.

Unless Mike has declared his anxiety as a disability and has discussed reasonable adjustments, then this would be no grounds for a discrimination claim. Employers will not be found guilty disability discrimination if they have not been notified of a disability.

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Just noticed it is an old thread after I typed up a long reply.

Hi Florence, you said:

"However in employment tribunal or otherwise employment matters, the burden of proof is only for the employer to have carried out a fair investigation and to believe and have reasonable grounds to believe that the employee committed a said act."

My version of events was that I approached 2 members of management ( both good friends) who ended up bullying me. Their version of events was believed because it was 77% against me. Are they allowed to say this??

I questioned their friendship and how this would affect what they say but they said it's 2 against 1 effectively so they believe them and not me.

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would a response for 77% evidence against

I meant to say they are good friends with each other... not good friends with me!