An effective investigation tells the story of what happened and explains how those events were established. The facts are the story and the evidence is the means by which the facts are known.
Only material facts need to be established. To understand what facts are material, we need to know the definition of workplace harassment. In most jurisdictions, the definition is as follows: “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”
The essential elements of the definition can be broken down:
Material facts are those that are related to each of the essential elements of the definition.
Does the complaint, on the face of it, meet the definition of harassment? In other words, if proven, would the allegation or situation amount to harassment according to the definition? If the answer is yes, the legal term “prima facie” is used to describe the case.
The case has not been proven at this point, as no evidence other than the complainant’s statements has been obtained.
If there is no prima facie case of harassment, approaches other than investigation should be considered.
The investigation formula is therefore:
Prima facie case + evidence = material facts = proof that harassment did or did not occur
Evidence is information that is admissible proof of the facts in issue. It is usually something that can be perceived by the senses. It can be seen, heard, felt, tested or smelled. The stronger the evidence, the greater the confidence that a fact has been established.
In most workplace harassment cases, statements from the person making the complaint, the person responding to the complaint (the parties), and witnesses make up the bulk of the evidence.
Opinions, thoughts and conclusions are not evidence but may be inferences drawn from evidence. For example, a party or witness’ assessment of the good (or not so good) character of another person is not evidence.
Direct evidence relates directly to the fact in issue. It includes:
Direct evidence is strongest and should be given the greatest weight in assessing the case.
Indirect evidence establishes facts that, when taken with other facts, support the findings of an investigation. It includes:
It is not as persuasive as direct evidence.
Similar fact evidence shows that a person engaged in conduct similar to the conduct in question, perhaps involving other people or the same person at another time. For example:
The more similar conduct, the stronger the case. However, similar fact evidence does not carry the same weight as direct evidence. It is most often relevant in sexual harassment cases.
Hearsay consists of statements made by someone other than the witness and offered as evidence of the truth of those statements. Examples include:
It is always best (but not always possible) to obtain evidence directly from the source. Where possible, interview the person who made the original statement rather than relying on someone else’s account of it. In some situations, hearsay can be used but should be given appropriate weight. Direct evidence is stronger.
Acknowledged experts’ opinions are sometimes admitted as evidence. For example, in sexual harassment cases, experts have explained the historical effect of sexual harassment on women and why, as a result, they sometimes fail to report incidents in a timely manner.
How far does an investigation have to go to prove or disprove workplace harassment?
To understand the standard in workplace harassment, it is helpful to make a comparison. In criminal law, a conviction requires proof beyond a reasonable doubt. By contrast, the standard of proof in workplace harassment investigations is the balance of probabilities.
Have the scales tipped to one side or the other? Is it more likely than not that harassment occurred? Is the evidence in support of the allegations sufficiently credible to lead a fair-minded person to make a finding of harassment?
An effective investigation gathers sufficient evidence to establish the material facts and reach a conclusion about whether workplace harassment occurred. The evidence must be weighed according to its type and a determination made on a balance of probabilities.
