The Workplace Relations Commission (“WRC”) is empowered to monitor employment conditions through its inspection services to ensure compliance and enforcement of equality and employment related legislation. These functions were previously performed by NERA. In article, Emer O’Sullivan in Crowley Solicitors outlines the powers afforded to inspectors under the Workplace Relations Act 2015 (“the 2015 Act”). Emer assesses what an inspection may entail and provides useful tips and suggestions as to how employers can ensure that their businesses are inspection fit.
Inspections and powers of inspectors
Part 3 of the 2015 Act deals with inspectors, their appointment and their powers. Inspectors of the WRC are authorised to carry out inspections, examinations or investigations for the purposes of monitoring and enforcing compliance with employment legislation. The inspections may involve, but are not limited to, examining books, records and documents in relation to employment, as well as carrying out interviews with current and former employees.
These inspections may be carried out to investigate a specific complaint or they may be carried out at random without prior notice by the WRC. The motivation behind the inspection and the identity of who, if anyone, prompted the inspection will not be divulged to the employer. Where the inspection is prompted by a claim referred to the WRC, the WRC usually writes to the complainant to request the Complainant’s permission to let the employer know that his/ her complaint prompted the investigation. It is open to a complainant to refuse to consent to the WRC disclosing their identity.
When performing a function under the 2015 Act, an inspector may be accompanied by other inspectors from the WRC, the Department of Social Protection, the Revenue Commissioners or by members of An Garda Síochána.
Section 27 of the 2015 Act sets out the powers of inspectors, including:
- The power to enter at all reasonable times any places of work or premises which he/she has reasonable grounds for believing is being used in connection with the employment of persons, or at which he/she believes documents relating to the employment of persons are kept;
- The power to inspect and take copies of any books, documents or records he/she finds in the course of his/her inspection;
- The power to remove any such books, documents or records and retain them for such period as the inspector considers necessary for the purposes of his/her functions under the 2015 Act;
- The power to require any person at the place of work or premises to produce such books, records or documents as the inspector may reasonably require for the purpose of their functions under the 2015 Act;
- The power to require any person who the inspector reasonably believes is or has been an employer or an employee to answer such questions as the inspector may ask relative to any matter under the 2015 Act and to make a declaration as to the truth of those answers; and
- The power to examine any person whom he/she believes to be or have been an employer or employee, having advised the person that they are not obliged to say anything but that anything they do say will be written down and may be given in evidence.
It is an offence to obstruct, interfere with or otherwise impede an inspector or member of An Garda Síochána in the course of exercising a power conferred by the 2015 Act.
Compliance notice and fixed charge notice
Where breaches of legislation have been found, an inspector may, depending on the section of legislation involved, issue either a Compliance Notice or a Fixed Payment Notice to an employer.
Pursuant to section 28 of the 2015 Act, where an inspector is satisfied that there has been a contravention of specified areas of employment law (including some sections of the Organisation of Working Time Act 1997 and the Payment of Wages Act 1991) the inspector can issue a Compliance Notice setting out the grounds of the contravention, the steps the employer must take to ensure compliance and the time period within which to ensure compliance. If the employer does not appeal this or does not rectify the issues or outline in writing how it intends to rectify the issues set out in the Compliance Notice, the WRC may initiate prosecution proceedings against the employer.
An employer may appeal against a Compliance Notice to the Labour Court within 42 days of the service of the Compliance Notice. An employer may also appeal against a decision of Labour Court in respect of a Compliance Notice to the Circuit Court within 42 days.
Where an inspector is satisfied that the employer has complied with the Compliance Notice, he or she will serve a notice to the employer to that effect.
A person who fails to comply with a Compliance Notice by the specified date shall be guilty of an offence.
Fixed Charge Notice
Pursuant to section 36 of the 2015 Act, an inspector, where he or she has reasonable grounds for believing a person committed an offence under certain specified legislation (including under the Payment of Wages Act 1991 and the National Minimum Wage Act 2000) may issue a fixed charge notice, of up to €2,000, in respect of a specified range of acts of non-compliance by an employer. If this fixed charge notice is paid, within the required 42 days, then the matter will not proceed to Court. However if this fixed charge notice is not paid then the matter can be progressed to the District Court by the WRC.
Possible outcomes of inspections
Where an inspector carries out their functions under section 27 of the Act, he or she will prepare a written report. This report will be admissible in evidence in proceedings against the employer before an adjudication officer, the Labour Court or a court.
Generally after such an inspection, the inspector will follow up with a letter confirming either that the inspection is complete or highlighting some areas which will need to be addressed.
It may be the case that in instances of minor non-compliance that the employer will be asked to rectify the breaches and if it can be demonstrated that the matter has been rectified then the file is closed and no fines or penalties will arise. In cases of serious non-compliance, non-cooperation with the inspection or repeated non-compliance it may be necessary and appropriate for fines to apply and for prosecutions to be initiated.
Prosecutions for breaches of the relevant legislation may be initiated by the WRC in relevant cases. If convicted of an offence under the 2015 Act, the Court shall order the person to pay to the WRC the costs and expenses, measured by the Courts, incurred by the WRC in relation to the investigation, detection and prosecution of the offence unless the Court is satisfied that there are special and substantial reasons for not so doing.
How to prepare for inspection
We are recommending that all employers undertake a routine audit of HR compliance with an inspection in mind.
The following information is likely to be required by the Inspector and should be available in respect of all employees in the business for the past 3 years:
- Employer registration number
- Name, address, nationality and PPS number
- Copies of employment permits/permission to work for Non EEA Nationals or evidence that a permit or permission to work is not required (passport and immigration stamp/GNIB Card)
- Date of commencement and termination (if applicable) of employment
- Employee’s job classification/job description/experience
- Timesheets showing start time and finish times, Sunday work and overtime
- Holiday and public holiday entitlements taken by each employee
- Whether board and lodgings are provided and, if so, relevant details
- Details of meal breaks
- Payslips and payroll details (gross to net, rate per hour, overtime, deductions, shift and other premiums and allowances, commissions and bonuses, service charges etc.)
- Copy of terms of employment, including procedures for bullying and harassment, grievance and discipline and procedures for dismissal
- Register of employees under 18 years of age
- Any documentation relating to the employment of Non EEA citizens
The following tips may be helpful for employers who have been notified that a WRC inspection is to take place:
- Conduct checks on all documents and records to ensure that they are up to date and compliant with relevant legislation. Take steps to rectify any issues which arise if this is possible. These compliance checks should in any event be carried out on a regular basis to ensure compliance but particularly so in advance of an inspection.
- Ensure that the records set out above are available for the past 3 years (the notice of inspection from the WRC may specify the years for which records must be available) for all employees. Ensure that these records are well organised, accessibly and you should be in a position to provide these records to the Inspector when requested to do so.
- Ensure that the Employee Details form provided by the WRC is completed in advance of the inspection.
- Have facilities in place for the inspector to carry out any review of document, as well as any copying of documents, or interviews with any employees.
- You should have an appointed person to liaise with the Inspector in advance, during and after the inspection.
The key is to cooperate with all WRC inspections. If there are gaps identified to work with the inspector to ensure these are closed off in a timely manner following the inspection. Appeal procedures in relation to fines and prosecutions are available.
For further information on any issue raised in this article please contact Emer O’Sullivan at email@example.com
This article is a general summary of the subject and is not intended to be a thorough review or a complete statement of the law. Specific legal advice should be sought on a case by case basis.