Internal use only
HR Advisory Notice 04
Date: March 3, 2019
Subject: Burden of Proof
Distribution: SIL Area HR leaders: No forwarding required; use as needed.
When taking decisions regarding a staff person’s behaviour (following an inquiry that is a result of a suspected misconduct) it is important we are clear on the Burden of Proof being used for any such decisions. These descriptions explain the legal standards. US legal terms and terms adopted in SIL policy language are included. To understand the level of proof SIL uses, it is necessary to understand the other levels of proof. ELT members have been asking for clarification.
Burden of Proof
Reasonable suspicion is a low standard of proof and is used in SIL to indicate the Burden of Proof to be used when it would be appropriate for someone to make a report about misconduct by another person (and it would be required when it relates to child abuse).
With reasonable suspicion, we expect a report to be prepared to relate behavior to a breach of the Staff Code of Conduct.
Probable cause (not used in SIL)
Probable cause is a relatively low standard of proof, which is used in the United States to determine whether a search, or an arrest, is warranted. A good illustration of this evidence/intrusiveness continuum might be a typical police/citizen interaction. Consider the following three interactions:
● no level of suspicion required: a consensual encounter between officer and citizen
● reasonable suspicion required: a stop initiated by the officer that would cause a reasonable person not to feel free to leave
● probable cause required: arrest.
As this is purely used in criminal law, SIL and other employers do not use probable cause.
Preponderance of the evidence /Balance of probability/More likely than not
This is the level of proof SIL uses in making its administrative or employment decisions. It is the level of evidence that provides a balanced opportunity for both the complainant and the one accused to show that they are in the “right.” The preponderance of the evidence standard is met if the allegations are more likely to be true than not true. Or put another way, there is a greater than fifty percent chance that the allegations are true. The investigative team concludes that it is “more likely than not” that something is true.
This is also the standard used in civil cases. If someone filed a lawsuit, the jury would decide whether they have proven their claims to a preponderance of the evidence.
Preponderance of the evidence is the standard used in all employment situations. It is considered adequate evidence to take disciplinary action. It is necessary to have a lower standard of proof than “beyond a reasonable doubt” to deal adequately with toxic work situations such as abuse of power or sexual harassment. But since the proof is not established to a higher level, the results of the investigation are not made known publicly.
Beyond reasonable doubt (not used in SIL)
This is the highest standard of proof in Anglo-American jurisprudence and typically only applies in criminal proceedings. It has been described, in negative terms, as a proof having been met if there is no plausible reason to believe otherwise. If there is a real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence, or lack of evidence, in a case, then the level of proof has not been met.
The standard that must be met by the prosecution’s evidence in criminal prosecution is that no other logical explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent unless and until proven guilty. For “beyond a reasonable doubt,” you have to be practically certain that the allegations are true. In the employment context, with confidentiality issues, limited ability to seek evidence, and no jury, it would be effectively impossible to create a safe work environment with this standard. Therefore, it is only used for criminal convictions.
Additional Notes: not part of the legal definition above
We don’t actually have to use the Burden of Proof principle very often. It’s only when the person denies the behaviours, AND it is difficult to get collaborative evidence that an event or action occurred. This is most common in historical situations, and extreme ones at that. We have never had to use this burden of proof outside of historic child sexual abuse situations, and in situations where it has been used it has rarely been close to the 50/50 line. It has been more in the 75th percentile or higher.
SIL has an equal Duty of Care to persons on both sides of the situation, to provide protection from false accusation on one side, and protection from harm on the other. Balance of proof seems a fair way to consider both sides of a reported event. SIL’s protocol is, “If evidence and our methods of calculating come up with a 51% probability this event occurred, would we want to expose our children to the risk that we missed something? How would we feel even at 40%?” It would be nice to always have 100% evidence that the conclusions are correct, but that is not always the case, so all sides of the situation must be considered.
Actions requested of HR or SIL leaders:
No action is required.
SIL Global CHRO