Rules of evidence

HR professionals are often called upon to judge employee conduct and take action on their findings. This process does not necessarily call for the levels of evidence or probability required by a court of law – but it must amount to fair and reasonable conduct.

Integrity: There have been numerous studies about the incidence of lying in a social context. Although around 40% of individuals self-report they sometimes lie, the actual incidence of lying is much greater. Most people lie about coincidental things, knowing that they are too small to be detected. However, the incidence of serious lies goes up dramatically once an individual faces the threat of punishment if the truth were known. Moreover, there are also people with guilt complexes that make them lie even when they have nothing truly to hide about a particular circumstance and those who cheat in order to invite attention or out of a false sense of bravado.

Opinion: There is a common expression in many societies “it is only your opinion”. However, the “only” actually distorts the nature of the concept. We are constantly having to assess the situations we find ourselves in. This calls us to evaluation others and thus form “opinions”. Such an evaluation may be based on a small amount of data about them, or it could be based on a lifetime of knowing them. But the opinion we hold about others causes us to shape the truth of things that relate to them. Opinions can also be shaped by those around us, especially if they are conditioned by mentors or those in a position of personal power that we fear or blindly respect.  No-one can ever be truly objective and for that reason it is necessary to take into account the hidden bias that exists in perceptions. In Aldous Huxley’s book “the doors of perception” the author shows that in everyday life we do not perceive details, but scan for change. In this our skills and capacities differ. Curiously, those that are skilled at making assessments with such factors in mind can frequently hold “opinions” that do stand up to scrutiny and deserve respect.

Corroboration: Often the simplest way to confirm an event happened is to call on eye-witnesses or, if it involves a technical act, the opinions of experts. The problem with witnesses is that most people do not truly perceive what they see. They are not attentive to their surroundings and therefore do not notice essential details. They are also vulnerable to lapses in memory, suggestible or bias to or against the individuals subject to scrutiny. Experts, on the other hand, may call on different methods of analysis to confirm, or otherwise, an event and may differ in respect to their actual ability to evaluate the outcome of those analyses.

Prima facie evidence is the earliest indication that a particular circumstance has occurred. If it s discovered in an objective way – particularly if not being specifically looked for at the point of discovery – it can provide a powerful and compelling basis for taking evasive action and justifying reprimand. However, unless there is a compelling reason not to confront the individual(s) concerned (such as alerting them to detection of an ongoing fraud) then an explanation from the “data subject” is usually necessary and further investigation justified.

Direct evidence: This is information which comes directly from observation – either by another witness or CCTV cameras. There is still a possibility that what has been seen is misleading and due, perhaps, to the angle of sight or interpretation of seemingly incriminating computer evidence.

Circumstantial evidence: This is not usually sufficient to make any certain conclusions. It involves a person being in a position to have undertaken some action. But simply because an opportunity existed does not mean that an action was taken. A simple example is that an employee was left alone in a room with a $50 note lying on a table. Once their manager returns the $50 note is missing. However, it could be missing for any number of reasons and only after all other possibilities have been ruled out can circumstantial evidence be taken seriously. For instance, the note could have been blown through an open window or some other person come into the room and taken it.

Tantamount evidence: This is information which amounts to the same as being “caught red handed”. For instance, someone may not have seen an employee steal money from a retail cash machine, but the stolen notes were in their possession shortly after the money was found missing. Of course, the individual could still be innocent, as the money could well have been “planted” on their person to incriminate them or to deflect guilt from others.

Statistical evidence: Sometimes “cause and effect” is presumed because two or more things correlated with a specific outcome. But correlation is very different to a causal relationship. For instance, if every time it is Friday and individual is absent, it might be surmised that this means an employee has another job on a Friday – even though they are supposed to work full-time on a Friday for their main employer. However, the link could be incidental or explained by some other factor. The employee may drive to work in a defective car and the increased traffic makes it overheat when it is stationery and break down. Or a female employee’s partner may get drunk each Thursday night and assault her and she is too upset or showing physical marks the day after to come to work and be asked personal questions by colleagues.

False data: The advent of social media and the globalization of news has not, in itself, given rise to the phenomenon of “fake news” and the scope for false accusation – but only made them more prevalent and powerful. Such phenomena derive from often harmless gossip, which has moved from the public bar or neighbours’ over the wall conversations to Twitter and even the press. Fake conceptions are not just a global phenomenon. They can be generated intentionally to harm other individuals and groups. Even though it is unfounded the slurs often stick beyond any demonstration of any evidence to the contrary. In fact, it is often impossible to refute damaging accusations that are based on false witness too long ago for them to be easily investigated.

HR professionals may sometimes be caught up in circumstances where they may feel obliged to act, but where the basis for action is rumor – and true substantiation cannot be found. If the rumor could damage a company’s reputation line managers may wish to have the matter dealt with and it may seem to be easier to dismiss an individual rather than seek to work with them to establish their innocence. In such circumstances, it may seem best to involve the police if the matter has a criminal aspect – although this can take the control of outcomes out of a company’s hands. That is why a confidential, mutual settlement may be the only wise course of action.

Copyright: FCSL 2018

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