Workplace Relations Commission Inspections - How Do I Handle It?

In 2018, 45% of all employers inspected were found to be in breach of employment legislation. The WRC has reported that approx. 6,000 workplace inspections were carried out in 2018 and 98 cases led to prosecution.  In this months ‘How Do I Handle It?’ article, Ciara Ni Longaigh, Solicitor within Ronan Daly Jermyn’s Employment Group discusses what employers can expect from an inspection by the WRC and outlines how they can best prepare for same.  She has included a helpful checklist outlining key documents/information that an Employer will need to have available for the inspection.

We have received an appointment letter from the Workplace Relations Commission stating that a WRC inspector will be calling to our premises. We are concerned about the process and the potential implications if we are found to be in breach of the legislation. How does the inspection process work? How do we handle it?

In recent years, the Workplace Relations Commission (“the WRC”) has significantly increased the number of inspections being carried out by the Inspection and Enforcement Division. The WRC has reported that approx. 6,000 inspections were carried out in 2018 and 98 cases led to prosecution.  At the start of 2019, the WRC released the 2019 Work Programme which outlined that targeted inspection campaigns will take place in sectors such as equine, fisheries, nail bars, car washes and specific professional sectors.  Inspections may take place in tandem with Gardaí and other regulatory bodies such as the Revenue Commissioners or the Department of Justice who deal with immigration matters. The aim of WRC inspections is to monitor employment conditions, to ensure compliance with employment legislation and where necessary, enforce employment rights legislation. Given the rising number of organisations found to be in breach of employment legislation, employers need to be more aware than ever of their statutory obligations in order to prepare for the possibility of an unannounced inspection.

Timing and Location of Inspections 

Should an employer have a legitimate reason as to why an inspection cannot take place on the proposed date as set out in the appointment letter, the employer should contact the relevant WRC inspector to arrange an alternative date. In some instances, an inspector will arrive without warning at a premises to carry out an inspection. In 2018, 60% of inspections carried out were unannounced and the WRC has indicated that it intends to maintain the level of inspection activity going forward.

Employers are obliged to keep employment records at the place of employment and inspectors will generally assume that this will be the location of the inspection. As above, an employer should contact the relevant WRC inspector as soon as possible if there are valid reasons to carry out the inspection at an alternative location. The inspector will not enter a private residence without either the householder’s consent or a Court warrant and an employer should notify the relevant inspector if the inspection is scheduled to take place at a private residence.

Preparing for the Inspection 

Once an appointment letter has been received, an employer should review the WRC Inspection Checklist enclosed below. Employers are required by law to maintain employee records for a period of three years and WRC inspectors have wide powers to enter premises and inspect records as well as take copies of relevant documents. Employers should note the heightened requirement to maintain records in relation to force majeure leave for eight years and parental leave for 12 years pursuant to the Parental Leave (Amendment) Act 2019. Employers should also note that tax records must be maintained for a period of six years and any records relating to workplace accidents must be retained for 10 years. Employers should be cognisant of the fact that the retention of employment records involves a balancing exercise between data protection priniciples on one hand and the employment legislative requirements on the other. Therefore, it is important for employers to ascertain on what basis they are retaining the relevant records.

In terms of the actual process, an inspector will carry out an initial interview before reviewing the relevant documentation. An inspector may then chose to interview a selection of employees should they so wish. Once an inspector has completed his or her inspection, they will prepare a written report. In the cases of minor non-compliance, the relevant inspector may chose to issue a letter to the employer highlighting the areas which need to be addressed. The WRC have noted that areas of non-compliance identified during the inspection process can often be resolved satisfactorily by communicating and cooperating with the inspector.

WRC inspectors do have a wide range of enforcement powers at their disposal if needed. The inspectors may impose legal sanctions such as a compliance notice or a fixed payment notice and/or prosecution if an employer is found to be in breach of certain aspects of employment legislation. In general, WRC inspectors will work with employers to ensure compliance and the WRC has noted that over half of non-compliant employers in 2018 became compliant of their own accord.

The roll out of enhanced inspection services has been a key focus for the WRC in recent months with the launch of the new Employment Rights Compliance Enforcement System (ERCES). The WRC has stated that it intends to utilise this new inspection and enforcement application to enhance targeting and risk profiling of employers and has indicated that the system will be integrated with the Department of Employment Affairs and Social Protection systems. Such developments indicate that the inspection process continues to be a pivotal mechanism for the WRC in ensuring compliance with employment legislation across Ireland.

Conclusion

Given the ever-changing nature of the Irish employment law landscape, it is crucial for employers to keep apprised of developments. Employers should be aware of the expanded powers provided to WRC inspectors pursuant to the Employment Law (Miscellaneous Provisions) Act 2018. Inspectors may now issue a fixed payment notice to employers should they have reasonable grounds for believing that an employer has failed to provide an employee with a written statement of core terms of employment within the new prescribed time. In 2018, 45% of all employers inspected were found to be in breach of employment legislation. All employers, particularly those involved in the sectors listed above, should conduct a HR audit to ensure their organisation is ready for a WRC inspection.

Workplace Relations Commission Inspections Checklist

Useful Articles:

WRC 2019 Inspection Targets – what can we expect?

Workplace Relations Commission Inspections at a Glance

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Please Note: Ciara's colleague Jennifer Cashman  is speaking at this year's Annual Review of Employment Law conferences.

Session Title: Review of the Year

Employment law developments in Ireland are continuing in 2019. As well as other changes dealt with in detail in our programme, we’ve had much, much more. Jennifer delivers her annual round-up of the key employment law developments in 2019 not covered elsewhere in detail in this programme.

 Jennifer will focus on these areas:

1. Working Time Developments.
2. Retirement Ages and Auto Enrolment.
3. Flexible Working and Reasonable Accommodation in the Workplace.
4. Independent Contractor Arrangements.
5. Protective Leave Developments.

Find out more about the Annual Review of Employment Law 2019 conference, including the full programme, speaker list and how to book your place here (the deadline for early bird discount is 5pm this Friday 13th September 2019!):

• [SOLD OUT] Red Cow Moran Hotel, Dublin – Wednesday 30th October
• City North Hotel and Conference Centre – Thursday 14th November
• Talbot Hotel, Stillorgan, Dublin– Tuesday 26th November