FAQ: Can My Employer Stand Me Down Or Suspend Me?

It can be upsetting to be told by your employer that you are being stood down from work.  In New Zealand, employers sometimes use the words “stand down” when they mean “suspend”. This usually happens while the employer investigates an allegation.  Your employer cannot normally stand you down simply because they are unhappy with you. They must have a good reason, follow a fair process and usually continue paying you.

What does it mean to be stood down?

A stand-down usually means your employer directs you not to attend work for a temporary period. You remain employed, but you do not carry out your normal duties.  A stand-down is different from:

• being dismissed;

• taking annual leave;

• agreeing to unpaid leave;

• being made redundant; or

• being told that no work is available under a genuinely casual employment arrangement.

Although employers may call it a stand-down, New Zealand employment law more commonly uses the term “suspension”.  A suspension may happen before or during an investigation. It should not mean your employer has already decided that you did something wrong. It is meant to be a temporary and neutral step while the issue is properly considered.

Can my employer stand me down without pay?

In most cases, a suspension or stand-down should be on full pay.  Employment New Zealand states that suspension without pay should only be considered if it is specifically allowed by the employment agreement. Even where the agreement contains such a clause, the employer must still act fairly, reasonably and in good faith. An unpaid suspension is a serious step and may be difficult to justify.  

Why might an employer stand me down?

An employer may consider a stand-down where there is a serious issue that needs to be investigated and allowing the employee to remain at work could create a real risk.  Possible reasons include concerns that the employee might interfere with evidence, influence or intimidate witnesses, repeat the alleged behaviour, access confidential information, create a health and safety risk, cause a serious disruption at work, or damage an important investigation.

For example, if an employee is accused of altering financial records and still has access to the accounting system, the employer may consider temporarily removing that access or suspending the employee.

However, the fact that an allegation is serious does not automatically justify suspension. The employer should consider the particular facts and whether less harmful options are available.  Depending on the situation, alternatives may include:

• moving the employee to another area;

• changing their duties;

• allowing them to work from home;

• restricting access to certain records or systems;

• changing reporting lines; or

• asking the employee not to contact particular people.

Suspension should not be used to punish you before the facts have been established.

What process must my employer follow?

A fair employer should not normally call you into a meeting and announce that you have already been suspended without first giving you a chance to comment.  Before making the decision, the employer should generally follow these steps.

Check that there is a right to suspend

The employer should check your employment agreement, workplace policies and any relevant legislation.  Many employment agreements contain a clause allowing suspension on pay while serious allegations are investigated. If there is no contractual or statutory right to suspend, the employer must be particularly careful about whether suspension is lawful.

Identify a genuine reason

The employer should decide why your continued presence at work creates a real risk. A vague concern or a desire to make the investigation easier may not be enough.

Tell you what is being proposed

You should be told that suspension is being considered and why. You should receive enough information to understand the concern and give a meaningful response.  The employer should make it clear that no final decision has been made.

Give you a chance to respond

You should have a reasonable opportunity to comment on the proposed suspension. You may be able to explain why suspension is unnecessary or suggest an alternative.  You should usually be allowed to have a support person or employment representative with you.

Consider your response

The employer must genuinely consider what you say. They should not invite feedback if they have already decided the outcome.

Confirm the decision in writing

If the employer decides to suspend you, they should confirm the reason for the suspension, whether you will remain on full pay, when the suspension starts, what you can and cannot do, whether you must remain available, who you may contact, how the investigation will continue, and when the suspension will be reviewed.

The employer must also protect your privacy as far as reasonably possible. Telling other staff that you have been suspended for misconduct could unfairly damage your reputation, especially before the allegation has been investigated.

How long can a stand-down last?

There is no single maximum period for every suspension. However, it should last only as long as reasonably necessary.  Your employer should investigate the issue promptly and keep the suspension under review. An open-ended suspension with little communication may become unfair, even if the original decision to suspend was reasonable.

You should receive updates about delays and what will happen next. You should also continue to receive your usual pay unless there is a lawful basis for withholding it.

What can I do if I think the stand-down is unfair?

Ask your employer to confirm the following in writing:

• Why have I been stood down?

• Am I suspended on full pay?

• What clause in my employment agreement are you relying on?

• What risk would arise if I remained at work?

• What alternatives were considered?

• How long is the suspension expected to last?

• When will the decision be reviewed?

• What investigation process will now take place?

Keep copies of letters, emails, meeting invitations and pay records. Avoid contacting witnesses or accessing work systems if you have been directed not to do so, as this could create a separate issue.

An unjustified suspension may amount to an unjustified disadvantage under the Employment Relations Act 2000. In most cases, a personal grievance must be raised with the employer within 90 days of the action occurring or coming to your attention.

A stand-down or suspension can affect your income, reputation and future employment. It may also be the first step in a disciplinary process that could lead to a warning or dismissal.  Mathews Walker’s employment advocates can review the stand-down, explain your rights and help you respond to your employer. Early advice may prevent mistakes and help protect your position before the investigation goes any further. If you have been stood down without pay, were not given a chance to respond, or believe your employer had already decided you were guilty, get in touch today for a free consultation.

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