Unsubstantiated Findings In Workplace Investigations: What To Do When You Can’t Decide

In our investigation training sessions, it’s interesting how often participants say that when they can’t decide at the end of an investigation, they just say the allegation is “unsubstantiated.” For investigators, this can seem like the easiest option. They don’t do it in every case – just the hard ones. They worry that in making a hard decision, they will make the wrong one and put the organization at risk. If you find yourself in this position, I’d like to offer some thoughts.

The Organizational Cost of Defaulting to “Unsubstantiated”

A finding that something is “unsubstantiated” is the same as saying there is not enough evidence to find that the thing being investigated happened.

Investigators sometimes think that they are not making a finding in these cases, but this is definitely a finding – a specific finding that the allegation has not been proven. Where an investigator is worried about making a hard decision that something did happen – often where they feel uncertain based on the available evidence – deciding that it didn’t can seem less risky. We hear from investigators who say that they worry about making a finding that a respondent did something where they aren’t totally certain based on the evidence. They worry that any subsequent discipline (including dismissal) won’t hold up, and the organization might face legal liability. It can seem safer to simply find “unsubstantiated.”

While this may be true, this analysis is incomplete, because it fails to consider the cost of this finding – the cost to the complainant and to the organization as a whole. There are many barriers to complainants bringing complaints – fear of reprisal being the most common – and so it takes courage for a complainant to report. When the investigator finds the allegation unsubstantiated, this is a finding in favour of the respondent and against the complainant. If the matter being investigated really did happen and there is sufficient evidence to support it (i.e. enough to meet the balance of probabilities standard), then declining to make that finding is not fair to the complainant.

If the complainant has provided enough credible evidence to meet the standard and the investigator declines to find in their favour, they will be deeply unsatisfied with the investigation, the process and likely the organization as a whole. The trust that they put in the organization’s system when they brought their complaint will be lost. They will be unlikely to use that system again, and will probably tell others not to trust the system either. This is a significant cost to the organization and its culture – it may just be harder to quantify.

Embracing the “Balance of Probabilities” Standard

It’s normal to feel uncertain when making hard investigation decisions. The standard of proof in workplace investigations is balance of probabilities. In order to make a finding that something happened, there must be sufficient credible evidence to make it more likely than not that the matter being investigated occurred. If there is not sufficient credible evidence to make it more likely, then a decision should be made that the standard has not been met. In numerical terms, this is often described as making a finding that something occurred when the evidence in favour of it exceeds the 50% mark.

In many cases (especially ones based on credibility, discussed below), investigators make decisions when they are not certain about what happened. Certainty is not required. An investigator will never know what happened because they weren’t there – but they still have to make the decision. In criminal matters, there is a different standard – beyond a reasonable doubt – and in those cases, decision-makers must be far more certain before convicting. Using the balance of probabilities standard means getting comfortable with uncertainty.

Credibility Assessments: Navigating He-Said, She-Said

Knowing how to assess credibility is often key to making difficult investigation decisions. Investigators routinely admit that the hardest decisions they face are when they have to decide between two different versions of events – in other words, there is no corroborating evidence to help them make their decision. Corroboration is a “nice to have” – it gives an investigator more confidence in making their decision. But it’s not a “must have” – just like judges and arbitrators, investigators still have to make decisions, even when they feel less confident.

For example, the balance of probabilities standard can be met just by comparing the parties’ relative versions of events – a finding can be made in favour of the party who appears more credible. In these cases, the investigator’s job is to assess credibility. If an investigator has not been trained to do this, it can seem impossible, and often this is where the decision is made to deem the complaint “unsubstantiated.” Investigators must have the necessary training to be able to make credibility assessments when the need arises – corroboration will not always be available, and as you can see there are consequences for taking the easy route in such cases.

Elevating Internal Investigations: The Power of Proper Training

Much of what is described above flows from legal principles, and it would be unfair to expect an internal investigator with no legal background to know these things without training. However, the outcome of investigations can have significant impact – on the parties and the organization. Investigations are also becoming more complex and are under more significant scrutiny. We routinely encounter internal investigators in our training (even folks who have been doing investigations for many years) who don’t know the fundamentals, simply because they have never learned. If you are doing this work and have never had training, now might be the time to level up.