The recently published Annual Report from the Workplace Relations Commission highlighted that the Inspection and Enforcement Services of the WRC conducted just under 4,000 Employer inspections this past year and with that, found that 1,763 breaches of employment legislation took place. The significance of these breaches resulted in the recovery of just over €1.4 million in unpaid wages demonstrating the critical nature of maintaining compliant records and practices.
As with all legal obligations from an employment perspective there is a requirement for Employers to act in compliance, including the maintenance of employment records. The WRC inspection process is a means to both checking and ensuring compliance, and part of that process involves inspectors visiting places of employment, which can be either announced or unannounced. As inspectors are legally entitled to enter any workplace to carry out their work and an obstruction or the provision of misleading information to an inspector is a criminal offence, it is essential that all Employers seek advice and guidance on their legal obligations in particular to mitigate any liability that could arise from non-compliance.
What to Expect from the Inspection Process
Notification
In general, an Employer will get advance notice of an inspection. An appointment letter, giving a proposed date and time for the inspection, will be sent to the Employer. If he/she has a valid reason as to why the inspection cannot be carried out at the appointed time, the Employer should contact the Inspector as soon as possible to arrange an alternative date and time. In some instances, the Inspector may also call unannounced.
Location of an Inspection
Employers are required by law to keep their employment records at the place of employment. The Inspector will generally assume that this is where the inspection will take place. If an Employer wishes to have the inspection carried out elsewhere, he/she should contact the Inspector, who will consider any reasonable requests to carry out the inspection at an alternative location.
Communication
All correspondence from WRC Inspectors will include the Inspector’s contact details. If an Employer has had an inspection and needs an update on the case, he/she should contact the Inspector directly. If contacting the Inspector by phone, the Inspector needs to be satisfied of an Employer’s identity before providing information on a case. This is to ensure that Employer information is kept confidential. WRC Inspectors are required to provide a quality response to any written correspondence as soon as possible, but not later than ten working days from the date of receipt and to return phone calls within two working days.
Conducting the Inspection
At the commencement of an inspection, the Inspector will carry out an initial interview with the Employer or their representative. The relevant records will then be requested for inspection and examination. Having examined the records and carried out the necessary calculations, the Inspector will then interview a sample of Employees. This is usually followed by a further meeting/interview with the Employer or their representative to inform them of any preliminary findings.
If it appears from the inspection that an Employer is compliant with the relevant employment law, the Inspector will inform the Employer or their representative that a letter will issue, concluding the inspection.
If potential contraventions have been detected during the inspection, the Inspector may need to ask the Employer further questions in relation to them. It may also be necessary at this stage (or indeed at an earlier stage, depending on circumstances) to caution the Employer, i.e., informing him/her that what they say could be used as evidence. This is done in order to protect an Employer’s right not to incriminate themselves as a result of anything they might say.
Examining the Records
The maintenance of statutory records is a key element of ensuring compliance and is a key focus of the Inspectors activity, as without the accuracy of records, contraventions could arise. The Inspector will commence the inspection by examining a sample of original records over a period of one year prior to the inspection date. The Inspector may then determine that further records should be examined within the previous three years. It is important that records provided to the Inspector are in an appropriate format and capable of being verified by the Inspector.
Where no contraventions are found certain information has been verified through Employee interviews, the Inspector will advise the Employer accordingly and the case will be closed.
Interviewing Employees
Interviews are conducted with a sample of Employees in order to check the accuracy of records and information provided during the inspection and while there exists an entitlement to interview any Employee without the permission of their Employer, Inspectors will generally seek consent from the Employer. In some circumstances where it is not possible or appropriate to interview Employees, the Inspector may issue questionnaires to certain Employees.
Where Compliance is Evident
Where the necessary records are available and demonstrate compliance with employment law and this information is then verified through interviews with Employees, the Inspector will issue a letter concluding the inspection.
Where minor Non-Compliance is Detected
Where minor non-compliance is detected, the Inspector will ask the Employer to rectify them. In such cases, where the Employer demonstrates to the Inspector’s satisfaction that the matter has been rectified, the file is closed.
Non-Compliance Involving Underpayment of Wages
If there is reason to believe that Employees have been underpaid the WRC can seek to recover unpaid wages for all Employees, current and former.
Serious Non-Compliance and/or Non-cooperation
Occasions can and do arise where it is necessary and appropriate for the WRC to invoke legal sanctions against Employers who are found to be non-compliant. Compliance Notices and Fixed Payment Notices may be issued and if required Employers may be prosecuted where there has been a refusal to comply with the law, fail to cooperate with the inspection process, and/or who have been found repeatedly in breach of the law.
Sharing Information with Other Bodies
Statutory powers exist that enable the WRC to share information with other agencies, such as the Office of the Revenue Commissioners and the Department of Social Protection. The WRC may also undertake joint inspections with these bodies. Such sharing of information or joint inspection activity is undertaken in a number of circumstances, including in cases where there may be a risk of non-compliance across multiple areas.
If you require advice, guidance or support, please contact the Adare Human Resource Management team at (01) 561 3594 or email info@adarehrm.ie for more information on how we can help and support your Organisation under our Partnership Programme.