knowledge | 5 October 2016 |
New Powers for Inspectors of the Workplace Relations Commission
Significant investigatory powers are given to the Workplace Relations Commission (“WRC”) inspectors under the Workplace Relations Act 2015. We summarise the key elements along with guidelines to follow during a WRC Inspection.
The powers of such inspectors to conduct unannounced and unexpected regulatory investigations, as well as the formal transfer of prosecutorial powers from the Minister for Jobs, Enterprise and Innovation to the WRC should alert employers to be aware of the scope of the search and seizure powers of WRC inspectors, to ensure that any investigation conducted on their premises is carried out properly.
WRC inspectors have the power under the Workplace Relations Act 2015 to carry out an investigation at a place of employment in order to ensure compliance with equality and employment-related legislation. These powers largely consolidate preexisting powers under separate pieces of employment legislation.
WRC inspectors are appointed by the Director General and exercise powers conferred on them by the Workplace Relations Act 2015. WRC inspectors carry out investigations on behalf of the WRC but the Labour Court can also request WRC inspectors to carry out investigations on its behalf. While employment inspections were previously less common in “white-collar” environments, consolidation of inspectors and their powers makes the criminal element of employment law a more significant concern. These investigations generally involve examining books, records and documents related to the employment and conducting interviews with current and former employees and employers.
Powers of Inspectors
In general, inspectors have powers to:
- enter at all reasonable times any place or work or premises which the inspector has reasonable grounds for believing is being used in connection with the employment of persons, or at which the inspector believes documents relating to the employment of persons are kept;
- inspect and take copies, of any books, documents or records at such premises;
- remove any such books, documents or records and retain them for such period as the inspector considers necessary for the purposes of the inspector’s functions under the Workplace Relations Act 2015;
- require any person at the place of work or premises to give the inspector such information and assistance as the inspector may reasonably require for the purpose of their functions under the Act;
- 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 purposes of their functions under the Act; and
- examine any person whom the inspector believes to be or have been an employer or employee, and to require such person to answer such questions as the inspector may ask relating to the employment, and to make a declaration as to the truth of those answers.
An inspector can only enter a dwelling with the consent of the occupier or once the inspector has obtained a warrant from a District Court judge authorising the inspection. During an investigation a WRC inspector may be accompanied by other inspectors from the Department of Social Protection, the Revenue Commissioners or members of An Garda Síochána.
Consequences of a Breach of Legislation
It is an offence to obstruct or interfere with a WRC inspector in the course of exercising a power conferred on them by the Workplace Relations Act 2015. Similarly any individual who fails or refuses to comply with a request or who fails to answer questions asked by the inspector will be guilty of an offence.
Where a breach of employment legislation has been established the Inspector may, depending on the section of legislation involved, issue either a Compliance Notice or a Fixed Payment Notice to the employer, or commence a prosecution.
A Compliance Notice will state the grounds on which a contravention of legislation has taken place and require the employer to do or refrain from doing the acts outlined in the notice by a specified date. The employer can appeal this notice to the Labour Court and the decision of the Labour Court can in turn be appealed to the Circuit Court.
A Fixed Payment Notice, which applies only to breaches of certain statutes, states that the recipient of the notice may make a payment of a prescribed amount to the Commission. If the individual chooses to make the payment within the statutory 42 day period, no prosecution will be instituted against the individual. However the WRC may prosecute, if the individual fails to make the payment against the Fixed Payment Notice. Prosecutions will depend on the particular piece of legislation involved.
Practical Guidelines to follow during a WRC inspection
The WRC has published a guide about such investigations and the content of inspections. While this guide provides that, in general, an employer will get advance notice of an inspection, WRC inspections are sometimes unannounced.
Employers should have clear guidelines in place for staff to follow in the event of an inspection to ensure that employers and employees fully comply with their obligations and that WRC inspectors do not act outside the scope of their allocated powers.
- From a preparatory point of view a cross-disciplinary team including people from Compliance, HR, IT along with in-house counsel should be formed to manage, supervise and co-ordinate such an inspection.
- Like a fire drill, named key individuals in the organisation should be designated to deal with the inspector. Front door security/reception ought be aware of the identity of these designated persons with their contact details including mobile numbers.
- Consult with in-house and external legal advisers.
- On the arrival of the inspectors the designated person should be alerted and firstly examine the inspector’s authorisation and/or warrant in order to determine the purpose of the investigation and the scope of the inspector’s investigatory powers. The name and job description of the inspectors as well as their time of arrival should also be recorded.
- All staff should be notified not to tamper or destroy any information relevant to the investigation.
- During the investigation each investigator should be shadowed by the designated person to ensure that (a) the inspectors do not act outside the scope of their powers, (b) no legally privileged information is disclosed and (c) all communication between inspectors and the staff is recorded.
- Before the investigation concludes the designated person should ensure that he/ she has a written record of all documents and electronic devices taken or seen by the inspectors.
- After the investigation all inspected documents and information should be reviewed to establish the Company’s compliance with equality and employment-related legislation.
This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.