Workplace investigations procedural fairness

Understanding the presumption of innocence in workplace investigations.

In today’s world of instant information sharing, accusations—even unfounded ones—can have serious impacts on individuals’ careers and reputations. Here, we examine how the principle of the presumption of innocence, central in criminal law, translates to workplace investigations. While workplace inquiries operate under different standards than criminal trials, understanding the principle’s relevance is essential for maintaining fairness, procedural integrity, and the rights of all involved.

The importance of fairness in workplace investigations.

As a trained workplace investigator, I’ve seen firsthand the impact that accusations, especially those without merit, can have. In both social and professional settings, people often accept allegations without fully hearing both sides, which can lead to rushed judgments. However, achieving fairness requires considering all perspectives. In my approach to workplace investigations, a neutral stance is foundational, guiding the investigation toward objective and fair outcomes.

Applying the presumption of innocence in workplace investigations.

While the presumption of innocence ensures that a person accused of a crime is considered innocent until proven guilty, workplace investigations are governed by employment laws, company policies, and contractual agreements. Here’s how this principle adapts in the context of workplace investigations:

  1. Different Legal Framework
    Workplace investigations don’t operate under criminal law. Instead, they are guided by employment laws and company policies, which have specific standards and processes tailored to the employment context.

  2. Standard of Proof: Balance of Probabilities
    In workplace matters, the standard of proof is typically the “balance of probabilities,” which asks what is more likely than not to have occurred. This lower standard aligns with civil matters, allowing for assessments based on likely scenarios rather than proof beyond a reasonable doubt.

  3. Employer Authority and Responsibility
    Employers have the right to conduct investigations and take appropriate action, provided they adhere to relevant employment laws. While they’re not required to establish guilt beyond a reasonable doubt, they must conduct investigations fairly and impartially.

  4. Due Process for Employees
    Although employees are not presumed innocent as they would be in criminal cases, they are still entitled to due process. This means being informed of allegations, given a chance to respond, and assured that their perspective will be objectively considered.

  5. Guidance from Company Policies and Contracts
    The steps and rights involved in workplace investigations can vary according to company policies, employment contracts, and local employment laws. It’s crucial for employers and employees to understand these rules to navigate the process fairly.

Key differences: Criminal law vs. workplace investigations.

While the presumption of innocence reminds us of the importance of fairness, workplace investigations require a different approach. The evidentiary standards are not as stringent, as investigations are aimed at determining policy breaches rather than establishing criminal guilt. Here’s a summary of the key differences:

  • Criminal Law: Assumes innocence until guilt is proven beyond reasonable doubt.
  • Workplace Investigations: Relies on the balance of probabilities, prioritising procedural fairness and neutrality.

Best practices for Fair Workplace Investigations.

Conducting a fair workplace investigation requires clarity, objectivity, and respect for due process. Employers can benefit from the following best practices to achieve balanced, unbiased investigations:

  • Maintain Transparency: Clearly communicate the purpose, process, and expectations of the investigation to all parties involved.
  • Assess Evidence Impartially: Gather and review all available evidence without jumping to conclusions.
  • Offer a Right of Response: Give the accused a fair opportunity to respond to allegations.
  • Keep Accurate Documentation: Meticulously document the investigation, as these records may be referenced in any future legal or internal review.

Conclusion

Although the presumption of innocence does not apply to workplace investigations as it does in criminal cases, its core principles of fairness and impartiality are critical. For employers and HR managers, understanding these principles helps ensure that workplace investigations are fair, transparent, and legally compliant. By maintaining neutrality and providing due process, employers can protect the rights of all parties involved, minimise risks, and uphold a strong standard of organisational integrity.

This balanced approach not only leads to better investigation outcomes but also fosters trust and respect within the workplace, reinforcing a culture of fairness and accountability.

Further reading

 

Need workplace investigation advice? 

For expert guidance on implementing the right-to-disconnect provisions or assistance with compliance, reach out directly to David Haydon to discuss your obligations and discover strategies to build a compliant, balanced workplace. David is an employment relations specialist, highly experienced workplace investigator and independent HR consultant.  David works with clients Australia-wide.

David Haydon
Employment Relations Specialist, Workplace Investigator and HR Consultant