by
Ryan Clement, LL.M., barrister
STANDARDS OF PROOF are more prevalent in our daily lives than many of us might care to realise. It could be the difference between being found to have committed to a disciplinary offence at work or not; between succeeding at one’s grievance or not; being deemed to have been wrongfully dismissed or not; found to be in breach of the company’s code of practice or not; or, for example, having been found to be in breach of contract or not, to name just a few.
THE STANDARDS above refer to what we term, ‘balance of probabilities.’ I deliver training sessions on this standard and, trust me, it is not easy to apply this test when, for example, an investigator is face with two diametrically different accounts; especially when both appear to be highly plausible in the circumstances.🤔 The balance of probabilities cannot end in the balance i.e. 50-50. It’s the investigator’s job to decide, with good reasons, why they accept one side as being more likely than the other, even if it results in a tight 51% versus 49%! A decision must be made. It can be an unenviable task.
FURTHERMORE, the investigator’s findings and, on occasion, recommended sanctions could be tested by the courts on whether their findings were right on the balance of probabilities or, to complicate matters even more, it was reasonable to make such a finding based on the evidence, which they arrived at, you guessed, on the balance of probabilities. No wonder our training sessions are no less than half a day and more like a full day on how to handle disciplinary and grievance complaints.
AS WELL AS BEING an employment law specialist, as a former trustee of schools and past and present governor of many schools, I have been called upon to Chair complaints of all kinds in which I am to apply the civil standard of proof – balance of probabilities. In fact, regarding suspensions and permanent exclusions from maintained schools and academies, the Department of Education refers to this standard throughout its Guidance (August 2024). For example, ‘When establishing the facts in relation to a suspension or permanent exclusion decision the headteacher must apply the civil standard of proof, i.e. ‘on the balance of probabilities’ it is more likely than not that a fact is true, rather than the criminal standard of ‘beyond reasonable doubt.’ This means that the headteacher should accept that something happened if it is more likely that it happened than that it did not happen. The headteacher must take account of their legal duty of care when sending a pupil home following an exclusion.’ [para. 3].
THE BALANCE OF PROBABILITIES allows for a more pragmatic approach to justice, recognising that absolute certainty is often unattainable. It empowers one to make decisions based on the preponderance of evidence, ensuring that individuals can seek redress and resolution in civil disputes. Ultimately, it embodies a fundamental principle of fairness in a system, prioritising reasoned judgment over infallible certainty.
If your organisation requires such training and I can assist, you can email me HERE for enquiries.
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Copyright © Ryan Clement 2024
Ryan Clement 