As workplace investigators, we’ve seen our fair share of issues in the workplace. We’ve learnt that no two investigations are the same – they are all unique and come with their own set of complexities.
One of our biggest frustrations?
A one-size-fits-all approach to stand employees down at the first whiff of an allegation, assuming it creates procedural fairness. Sure, there are many cases where a stand-down is justified—like when there’s a genuine safety risk or to prevent evidence tampering —but more often than not, it’s an unnecessary overreach that can do more harm than good.
Under the Fair Work Act 2009, a stand-down without pay is not lawful during an investigation. Unpaid stand downs are only lawful in limited circumstances and unrelated to investigations — primarily where an employee cannot be usefully employed due to a stoppage of work, breakdown of machinery, or industrial action. Standing an employee down during an investigation on full pay is common practice to preserve the sanctity of the investigation, but it still carries significant legal and cultural risks if not handled carefully.
Here’s why we don’t love stand downs:
1. It Feels Like a Presumption of Guilt
Standing an employee down can create the perception that they’re already guilty. Even though your letters and discussions say that there is no presumption of guilt, the affected party looks at it differently. It signals to colleagues (and the employee themselves) that something serious must have happened, even before the facts are established. This can irreparably damage reputations—even if the person is later cleared.
This reputational damage doesn’t disappear with a clearance letter. In our experience, employees who are stood down and later found to have no case to answer often return to a workplace where the perception of guilt has already taken hold. The investigation may be over, but the damage to the working relationship and the employee’s standing in the team can persist for months.
2. It Can Escalate a Manageable Situation
Not every investigation involves misconduct so severe that the employee must be removed from the workplace. Yet, employers often default to standing someone down instead of considering alternatives like working remotely, modified duties, supervision, a temporary reassignment, or introducing temporary communication protocols in place. A heavy-handed response can create unnecessary tension and make a situation feel far more dramatic than it actually is.
Before defaulting to a stand-down, consider whether any of these alternatives would adequately manage the risk:
— Remote work arrangements for the duration of the investigation — Temporary reassignment to a different team, site or function — Modified duties that remove the employee from direct contact with the complainant — Supervised work arrangements where appropriate — Temporary communication protocols between the parties involved
The question to ask is not “should we stand them down?” but “what is the actual risk we are managing, and what is the least disruptive way to manage it?”
3. It Undermines Trust in the Process
Employees need to believe that workplace investigations are fair. But when someone is stood down before they even have a chance to respond, it can make them (and their colleagues) question whether the process is truly impartial. For an investigator, it is very important for us to be able to build trust with the parties, or they will not open up to us honestly. Building trust becomes twice as hard when the reasons for the stand down are not convincing.
If the goal is to maintain procedural fairness, starting with a punitive-looking measure is not the way to do it.
Procedural fairness requires that the respondent is informed of the allegations against them and given a genuine opportunity to respond — before conclusions are drawn. A stand-down that precedes this step, or that feels disproportionate to the allegations, can give the respondent legitimate grounds to challenge not just the outcome of the investigation, but the entire process.
4. It Disrupts the Workplace More Than It Helps
Contrary to what some employers think, standing an employee down doesn’t always “stabilize” the situation—it often creates more uncertainty. It can fuel speculation, increase anxiety, increases workload for others, and results in awkward water-cooler conversations.
Plus, if the investigation drags on (which they often do), the prolonged absence can cause unnecessary disruption.
There is also a wellbeing dimension that is frequently overlooked. Being stood down, even on full pay, can have a significant psychological impact on the employee. Isolation from the workplace, uncertainty about the outcome, and the stigma associated with absence can contribute to anxiety and disengagement. In some cases, this leads to a secondary complaint about the way the investigation itself was handled — creating a new layer of complexity that the employer then has to manage.
5. It Makes Repair and Rebuilding Relationships Harder
Investigations cause disruption to the individuals and the entire team. Employers may like to think investigations are completely confidential, however long and unexplained absence of a team member, the awkward re-allocation of their duties to others, and overall tension in the air speaks volumes – everyone knows something is wrong! Rebuilding relationships in such cases, especially if both parties are expected to continue working together becomes complex and time consuming.
In our experience, the workplaces that manage investigations most effectively are those that treat the process as a means to a fair and constructive outcome — not a disciplinary procedure in disguise. This means keeping the footprint of the investigation as small as possible, communicating thoughtfully with the broader team, and having a clear plan for what happens after the investigation concludes, regardless of the outcome.
So, When Is a Stand-Down Actually Justified?
A stand-down should be considered when:
— There is a genuine and immediate safety risk to the complainant, respondent or other employees — There is a real and evidenced risk of interference with witnesses or evidence — The nature of the allegations is so serious that continued presence in the workplace would be inappropriate (for example, allegations involving physical assault or serious sexual harassment) — The respondent holds a position of authority over the complainant and no alternative arrangement is practicable
If none of these factors are present, the default position should be to find an alternative that keeps the employee engaged while protecting the integrity of the process.
The Bottom Line
Is a stand down truly necessary, or have we assumed this is the only way?
In our view, standing an employee down should be the exception, not the default. Procedural fairness isn’t just a checkbox; it requires critical thinking and should fit what the situation demands. What’s procedurally fair for one must not create lack of fairness for another.
Thoughtful handling of workplace investigations—without unnecessary stand-downs—can make all the difference in ensuring a fair and balanced outcome.
If you are managing a workplace investigation and unsure whether a stand-down is appropriate, getting early advice from an experienced HR professional can save significant time, cost and workplace disruption down the track.
Have a situation you need help with? Give us a call now.
Frequently Asked Questions
Q: Can an employer stand down an employee without pay during an investigation?
Generally, no. Under the Fair Work Act 2009, standing down an employee without pay is only lawful in specific circumstances — such as a stoppage of work outside the employer’s control. Standing an employee down during an investigation is on full pay, irrespective of the seriousness of the allegations. Failure to pay the employee during this period may constitute an unlawful stand-down.
Q: Does standing an employee down during an investigation mean they are at fault ?
No — but it can create that perception. A stand-down should be a neutral risk-management measure, not a punitive one. However, without careful communication and genuine consideration of alternatives, it is frequently interpreted as a signal that the outcome has already been decided.
Q: What are the alternatives to standing an employee down during a workplace investigation?
Alternatives include remote work, temporary reassignment, modified duties, supervised arrangements, or agreed communication protocols between the parties. The right option depends on the specific risks involved — including safety, evidence integrity and the working relationship between the parties.
Q: How long can a stand-down during a workplace investigation last?
There is no fixed legal timeframe, but a prolonged stand-down — particularly one that extends well beyond what is reasonably necessary for the investigation — can increase isolation and risks for the employer. Investigations should be completed as efficiently as possible, with the stand-down period kept as short as the circumstances allow.
Q: Can an employee challenge a stand-down during a workplace investigation?
Yes. If an employee believes the stand-down is unjustified, disproportionate or amounts to adverse action, they may have grounds to challenge it through the Fair Work Commission. This is particularly relevant where the stand-down appears to be punitive rather than a genuine risk-management measure.
