Beyond Reasonable Doubt? Not Here—Understanding Balance of Probabilities at Work

If you have ever been involved in a workplace investigation, whether as a complainant, respondent, HR professional or manager, you’ve likely encountered the term “balance of probabilities.” It is the standard investigators use to decide whether an allegation is substantiated.

But what does it actually mean, and why does it matter?

What Is the Balance of Probabilities?

In short, it means that something is more likely than not to have happened. Think of it as being at least 50.1% certain.

This is the standard of proof used in civil matters, including workplace and administrative investigations. Investigators don’t need to be certain that something occurred. No one is looking for the lost scrolls of irrefutable truth. They just need to be persuaded by the evidence that one version of events is more probable than the other.

Not “Beyond a Reasonable Doubt”

A common misconception is that investigators must have conclusive proof before making a finding, like hard written proof or security footage. But that is the criminal standard, and not what’s used in the workplace.

For HR professionals, this distinction is crucial when explaining the findings to employees. You are not declaring someone “innocent” or “guilty”. You are not Judge Judy! Rather, you are determining whether the evidence shows it is more likely than not that a workplace policy or code of conduct was breached.

How Investigators Apply the Standard

Investigators consider all the evidence, including:

• Interviews with the complainant and respondent
• Witness accounts and credibility
• Emails, messages and other records
• Timing and consistency of stories
• Supporting documentation (or lack thereof)

It is not about who is more confident or charming under pressure.  It is about whose story holds up under scrutiny and aligns with known facts.

A Tipping Scale, Not a Hammer

Imagine an old-fashioned scale. On one side: evidence supporting the allegation. On the other: evidence disputing it. If the scale tips even slightly toward one side, that version is “more likely true than not” and that side “wins”. That’s the balance of probabilities. Not certainty, just a slight tipping based on the strength and reliability of the evidence. 

Why It Matters

For HR and leadership, understanding this standard helps set realistic expectations and communicate outcomes clearly.

For employees, it means that investigations are not about delivering cinematic justice, but about assessing likely truths in complex, human situations.

Ultimately, understanding the balance of probabilities helps everyone involved approach the process with realistic expectations.

Complainants do not need to provide absolute proof, and respondents don’t need to disprove everything. It also helps organizations accept findings, even when they don’t include “smoking gun” evidence.

This standard makes it possible to address real concerns in a fair and reasonable way, even when the only “hard evidence” is a Teams chat and some very passionate recollections.

Final Thought and Call to Action

Workplace investigations are not courtroom dramas (even though they occasionally come with cliffhangers and plot twists). They are about assessing workplace behaviour through a fair and impartial lens. The balance of probabilities allows organizations to address concerns with care and accountability, without requiring perfection from human memory or interaction.

So next time you hear someone say “balance of probabilities,” don’t glaze over. Think of it as the humble, everyday tool that lets us weigh the evidence and make reasonable decisions, even if we are not 100% sure and no one is pounding a gavel.

If you are an HR leader, make sure your teams are trained to understand and explain this standard.

If you are an employee, know that your voice matters, even without a paper trail.

And if you are an employer, build a culture where issues are addressed early, before they escalate and you need an actual investigation. In the workplace, as in life, we do not need to be perfect.  We just need to be, more likely than not, on the right track.

Please visit our website (www.hrlawyers.ca) or contact us at contact@hrlawyers.ca to learn more about how we help organizations with workplace investigations & transformation, and employment legal matters.

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