As workplace investigators, a primary part of our mandate is usually to make factual findings. However, as we know, making factual findings can be a challenging exercise. It can be particularly difficult to determine what we should rely on to make those findings. When I give presentations on the challenges in workplace investigations, one of the questions I am frequently asked is whether similar fact evidence should be used to make factual findings in workplace investigations. Once the question is asked, a very spirited debate usually ensues because investigators really grapple with this question. My suggestion is that, as workplace investigators, we ought to think twice before relying on similar fact evidence to make factual findings. An unpopular opinion for some, I am sure, but in this blog, I will take us through some of the considerations that inform my view in this regard.
I will start by explaining what similar fact evidence is. Similar fact evidence is, essentially, evidence of past misconduct which is used to prove or otherwise bolster the argument that a respondent is culpable for the alleged conduct in question. Simply put, it is evidence of past misconduct used to establish a pattern of behaviour.
It is often believed that similar fact evidence is very helpful evidence to confirm or establish that a respondent did what is alleged — for example, where a witness says that they have seen the respondent engage in “similar” behaviour or that they themselves have experienced such behaviour from the respondent in the past. On the face of it, this can seem like very compelling evidence. That is, if the respondent did it then, then it is highly likely that they did what is now alleged. I get it. That can be tempting, especially if you do not have a lot more to go on. However, there are a few problems with that reasoning that could cause a big wrinkle in your investigation if caution is not applied.
The debate of similar fact evidence is nothing new, particularly in the context of criminal proceedings. In criminal proceedings, for similar fact evidence to be deemed admissible, it needs to be established that its probative value outweighs its prejudicial effects. Otherwise, there is a presumption of inadmissibility. Inherent in this principle is the recognition that similar fact evidence has the potential to be prejudicial. Therefore, fairness to a defendant requires that it not be relied on unless its probative value is shown to outweigh that prejudice.
The courts take the use or admissibility of similar fact evidence very seriously, and in doing so, embark on a deep analysis of that probative value before accepting the evidence as admissible, if it decides to do so at all. This should be a signal to us as workplace investigators to be slow to accept similar fact evidence as proof of alleged misconduct by a respondent, without more. The following are some notable challenges with similar fact evidence in workplace investigations that we should think about.
We often hear that a respondent engaged in behaviour similar to what is alleged, but we do have to ask whether it is truly similar. For example, a respondent is alleged to have made an inappropriate remark about a coworker’s body, and a witness indicates that they have heard the respondent make multiple comments to other women in the office about their attire. It is not clear that the nature and context of both scenarios are in fact similar. We also hear general statements like, “They do this all the time.” Is such a statement anything more than a personal opinion? To introduce the unrelated prior incidents as indicative of a pattern of behaviour by the respondent, without more, can be unfair if it is not established that there is indeed some similarity, both in nature and context, and that there is more than reference to a vague tendency or personal opinion.
Here is some food for thought – just because someone says that a respondent has engaged in prior misconduct does not mean that they did. How do you know that what they are saying is true? Has it been tested or investigated? First, people can be dishonest, this we know to be true. Second, even if not being dishonest, people can be genuinely mistaken. Therefore, before accepting evidence of prior misconduct as proof of a pattern of behaviour, we need to pause and consider the reliability of that evidence. To do otherwise would be quite unfair to a respondent.
Here is some more food for thought – even if the prior misconduct is true and it is indeed similar to what is now alleged, it does not mean, without more, that the respondent did what is alleged in the present case. Yes, I appreciate that may be a hard thing to accept. However, consider this — have you ever done things in your earlier working years that you would perhaps never do now? What if someone who only knows about that past behaviour and has never been able to forget it, decides that that past behaviour determines what you would likely do now? Does not seem fair, does it? That is because it is not.
Evidence of prior misconduct is likely new evidence that the respondent does not know about and would not have anticipated being part of the investigation. Therefore, it would not be fair to rely on this new evidence as the basis of your factual findings if the respondent is not aware of it and has not been given the opportunity to respond. It is quite easy to conclude that there is a pattern when you hear five witnesses confirm that the respondent has made the same alleged comment to them, but what if the respondent were to tell you that there are five people who have an axe to grind against them and who are colluding with each other? That may raise a question of credibility.
That said, despite the challenges that I have outlined, it does not mean that similar fact evidence does not have value. So, the question then becomes, what do we do with the evidence when we receive it? Before relying on it in our investigations, we must think about the probative value and procedural fairness. Here are some considerations.
The first step is to satisfy ourselves that the evidence of prior misconduct is relevant to the investigation and is also indicative of more than a vague tendency or personal opinion. The assessment of relevance and quality in this context involves considering whether the nature or context of the alleged prior misconduct is indeed similar to what is alleged in the instant case. If it is not, the evidence has little or no probative value.
Consider whether the similar fact evidence is even necessary to make a finding. Often there is sufficient other evidence available to make a finding without the use of similar fact evidence. Particularly, there is usually sufficient evidence to make the findings based on credibility if there is no other corroborative evidence. An assessment of credibility is usually a stronger basis upon which to make a finding than similar fact evidence.
If evidence of prior misconduct is to be relied on, a useful approach is to expand the scope of the current investigation to investigate the alleged prior incidents. Adopting this approach addresses the fairness consideration because it would or should involve notifying the respondent of the additional allegations, affording the respondent an opportunity to respond to each incident of alleged misconduct, and gathering any other relevant evidence. This way, the investigator can properly determine if there is indeed a pattern of behaviour by the respondent.
The takeaway is that we ought not to be quick to rely on similar fact evidence as proof of a pattern of conduct by a respondent. In fairness to the respondent, we ought to be mindful of the prejudicial impact of such evidence and consider whether the evidence is necessary at all and, if so, what measures need to be taken to ensure procedural fairness for the respondent.
