Stop in the name of…investigations? Suspensions or stand downs in workplace investigations

Should you suspend an employee the subject of an investigation?

If so, when?

Stop….In the name of love as The Supremes would say?

There are a number of factors for an employer to consider when deciding if an employee should be stood down or suspended while undertaking a workplace investigation, particularly in relation to their potential misconduct.  It should not be the default option, but rather a deliberate decision made after careful consideration.

What is a stand down or suspension?

A suspension or stand down from work with pay is when you require the employee not to attend work or conduct any work.  It is usually paid.

It is not considered to be a disciplinary action of itself.  The purpose of the suspension or stand down is to enable an investigator to complete their investigation without the respondent at the workplace.

What considerations should employers have when considering standing someone down?

There are a number of considerations employers should have before standing down an employee during an investigation process.

Firstly, as an employer, do you have the power to stand down an employee? This power can arise from a contract of employment or a policy.  If there is no express power, it could be considered a reasonable management action, however, it would depend on the other circumstances set out below.

Secondly, if the allegations turned out to be true (which you do not know at this point), would they be so serious that it could amount to the termination of that employee’s employment? This is a question about the seriousness of the allegations.  For the purposes of this question, you are assuming that they are true, and if so, would it be so serious that you would terminate the employee? If yes, this leads to stand down being more likely.

Thirdly, is there a risk that the behaviour or conduct could occur again such that there is a risk to the safety and health of the Complainant or Impacted Person or witnesses or others? This could also involve a risk of retaliation or victimisation, where the respondent has power over people and could make decisions e.g. adverse roster changes if they are aware that there is an investigation arising from a complaint made.  This should also take into account the Impacted Person’s views or wishes.  The Impacted Person may also not be at work due to health reasons or choose not to be at work.

Finally, are there any alternatives to a stand down? This could involve asking one or more parties to work from home or work in a different area or part of the business or shuffle rosters so that the relevant parties do not cross over during the investigation.

What to do when an employee is stood down

Firstly, it is important to keep in touch with the employee that is stood down on a regular basis.  It can be a very stressful situation when they know they have been stood down pending an investigation without knowing the nature of the allegations or their seriousness.  It is important to conduct welfare checks and keep the employee updated on the progress of the investigation.

Secondly, it is important for the investigation to move as quickly as possible, to minimise the amount of time the employee has been stood down.  The longer this continues, the more problematic it can be in the future, as it raises questions of procedural fairness, as well as the wellbeing of the person that is stood down.

Stop! In the name of … [love] a workplace investigation

A stand down or suspension from duty is a valid direction during an investigation process in certain circumstances.  However, it should be managed carefully… without breaking anyone’s heart.

Remotely Legal can assist employers and boards on all aspects of employment law, including advising on difficult people issues, reviewing policies and assisting with enterprise bargaining.  Remotely Legal can train your boards and management teams on how to deal with incidents and investigations.  Remotely Legal can also be your fully outsourced HR and people legal team.

RL Investigations, part of Remotely Legal, are a team of highly experienced and qualified lawyers and investigators, who can function as your independent, external investigation team providing fast, comprehensive and reliable investigation reports, workplace culture reviews and suggestions for organisational improvement. RL Investigations can also help your internal HR or investigation team to improve their investigations and assist decision makers in considering the right factors when making key decisions.

This blog is general advice only.  Please obtain legal advice in relation to your specific circumstances.  This blog was written by a human so please seek permission if you wish to copy any of it.