This month the Workplace Relations Commission (“WRC”) issued a “Guide on Inspections” (the “Guide”) for employers.
Under the Workplace Relations Act 2015, the WRC’s Inspection and Enforcement Services are tasked with monitoring employers through the inspection process in order to check and ensure compliance with employment law.
According to the WRC’s most recent progress report, 2465 inspections were carried out up to March 2016. Out of this number, 1086 employers were in breach of employment legislation. The majority of the breaches were under the Organisation of Working Time Act and the Payment of Wages Act.
Finally, the WRC received 513 complaints from employees in relation to their employers.
How is the inspection undertaken?
The WRC can carry out inspections of a workplace in one of 3 ways:
- Complaint from an employee; or
- At random.
For point two above, the identity of an employee (or ex-employee) will not be disclosed to the employer unless the individual has given his express permission to release his name.
Generally, an employer will receive advance notice of an inspection, which will include a proposed date and time for the inspection. Where the inspection has been announced by letter or telephone, employers will be told to make necessary arrangements for the inspection.
Inspectors may enter an employer’s premises at any reasonable time. At the start of the inspection, the inspector will identify himself, he will show his warrant of appointment and he will explain the purpose of the investigation.
In some situations, more than one inspector will carry out the inspection. They may also be accompanied by a Garda or apply to the District Court for search warrants.
Most inspections involve examining and/or taking copies of books, records and documents in relation to employment as well as interviewing current and former employees.
A detailed checklist of all required information for employees is included in the Guide, link below.
What happens in cases of non-compliance?
Where all records are in line with employment law and staff corroborate this in their interviews with the WRC inspector, employers will be issued with a letter of compliance.
If there is minor non-compliance, the employer will be given an opportunity to rectify the matter.
However, in cases of serious non-compliance the inspector may invoke sanctions against the employer, including Fixed Payment Notices and/or proceed to prosecute the employer. When deciding to prosecute an employer for breaching employment law, the Guide notes that the inspector’s decision is reached on a “consistent, proportionate and fair” basis. The decision to prosecute is only likely to occur if the employer refuses to comply with the law and/or fails to cooperate with the investigation process and/or is found to be repeatedly in breach of the law.
In cases involving underpayment or non-payment of wages, the WRC will seek to ensure that the money is recovered for all employees. The inspector will ensure that these payments are made in compliance with the relevant legislation and will consult with employees where necessary. In 2015, €665,208 was recovered by inspectors. In most cases where unpaid wages are subsequently paid, no further action will usually be taken by the inspectors.
The following tips are useful for employers who have been notified that an inspection is due to take place.
- Ensure all employment records (with particular focus on payslips and working time records) are up-to-date, well-organised and available for the past three years.
- Have facilities in place for the inspector to view the documents, to make copies and to interview employees.
- Fill out all of the employee forms that will be provided in advance of the inspection and liaise with the inspector in advance, during and after the inspection.