The Convenient Proof?

It’s been a while since I blogged about employment law, so apologies to those that have followed the link expecting my usual musings about leadership and organisational culture, but the recent Liberal Democrat investigation into allegations of sexual harassment against Lord Rennard has prompted a legalish sort of blog post.

Many years ago, I went off to university to study the law. Much of what I learned has now, partially with the aid of liquid refreshment available from the student union, passed from my memory. And when it comes to all that stuff about trusts and equity then good riddance too. But I do remember one thing that they taught us fairly early on: the rather important distinction between the criminal and the civil law, particularly in reference to the topic of the burden of proof.

Now if those people who usually visit my blog for a thought or two about employee engagement are still reading, it goes a bit like this.

In criminal law, the burden of proof is ‘beyond all reasonable doubt’. It is a high standard, and so it should be, as a criminal conviction may deprive an individual of their liberty, and in some countries, their life. Whilst it does not mean absolute certainty, it does mean that extremely sure. There can be no plausible reason to believe otherwise.

Not so in the civil law. Over there, we are looking for ‘the balance of probabilities’. Simply, it is more likely than not. A burden of proof that is nowhere near as high as its criminal counterpart. This is the one that we apply in the employment law context.

Now, back to the LibDems. I should state at this point I know little about their constitution or party rules other than what is currently available via various media sources. What we do know is this. A senior Liberal Democrat is accused of sexual harassment and an investigation was undertaken. The party internal procedures provide for the claims to be proved beyond all reasonable doubt. The investigation found that this burden was not met. Hardly surprising in a harassment case; such incidents will rarely find themselves with witnesses or a handy smoking gun. The investigation did decide that there was broadly credible evidence over a period of several years that ‘violated the personal space and autonomy of the complainants’. I don’t claim to have read entire report, but that sounds suspiciously like meeting the balance of probabilities test to me. Even the QC who lead the enquiry thought that there was sufficient evidence to warrant an apology.

Here’s the thing. There is quite simply no need for internal procedures, or political parties, to refer to the criminal burden of proof as a standard for investigating internal matters. When we are at work, we are at work. We are not in a court of law (unless you happen to be actually employed by one), being charged with a crime for which you could be sent to prison. Whilst the matter, as with many issues that also arise in the course of employment, might also amount to a criminal offence therefore entitling the employer to notify the policy as such, this does not appear to be being dealt with as a criminal issue. Where situations at work arise that can be either a criminal matter or a civil matter or both, they can be dealt with separately. There is plenty of case law to back up this point.

Parking the employment law argument aside for a moment, what about the moral one? The conversations I like the least at work are of the ‘my contract of employment states, it’s not in myjob description, can I refer you to the policy manual’ type. Because if you are arguing about a black and white interpretation of some document, some policy, some situation, you might just be losing sight of the real issue.

Put aside for a moment technical definitions. Look at what is going on, at its heart. During my career in HR I have been faced with accusations of varying types against employees. Some of these have had substance, and some of them have not. Of course a proper investigation has to be undertaken, and the findings acted upon, whatever they are But if we are doing our jobs in HR we look beyond the formal findings. We listen, we look, we attempt to understand. What is this telling us about our culture, our leadership, our problems? We must never lose sight of what our real issues are by focusing on a definition in a textbook or policy document.

Because as a leader, or HR professional, if all you can do is point at the wording on a page and use it as an excuse to take no action, then quite simply, that ain’t good enough.

Note: I was half way through writing this post, when Darren Newman wrote a better one. You can find it here.

One thought on “The Convenient Proof?

  1. How ironic: for 20 years I have reminded both complainants and perpetrators that our business is in fact not a court of law, and the balance of evidence is [therefore] much less. The solution? Build evidence to the good rather than contrary. Excellent write (again) Gemma.

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