An inspector calls..

• Ireland

• General

06-09-2017

What are the implications of a WRC inspection and a subsequent compliance order?

The working conditions of stable hands and grooms have been widely reported on in recent weeks. The Labour Court is currently hearing an appeal by Ballydoyle racing yard arising out of compliance notices issued by a Workplace Relations Commission inspector. The WRC inspector found multiple breaches of the Organisation of Working Time Act in particular in relation to breaks and rest periods. The implications of the inspection and compliance order could have profound implications on the horse-racing world.

One of the key questions for the Labour Court to consider is whether the definition of “agriculture” encompasses horse-racing and breeding. If training horses can be deemed an agricultural activity, then the stable is exempt from the requirements of the Working Time Act.

Legislation defines “agriculture” as the production of animals, packing of meat, producing crops and horticulture, including gardening. It would seem that the activities of a stud farm are not captured by this definition. However, lawyers for Ballydoyle have pointed to broader definitions in Irish and European law. The case may be referred to the Courts of Justice of the European Union for clarification  - this would have significant impact on horse yards across Ireland.

In this month’s speed brief, we will look at the inspectorate function of the WRC and the implications for your business.  The WRC states that it does not intend for an inspection to be difficult or onerous and that inspectors want to ensure compliance for the benefit of both employers and employees.

When might an inspector call?

Inspectors will generally inform an employer in advance of their proposed inspection date. It is possible to seek a postponement or re-arrange the date if there are reasons which would make an inspection difficult. An inspector may also call unannounced and be accompanied by other WRC officials and the Gardaí.

What will an inspector want to see?

An inspector will call at the place of employment and will therefore want to see the employment records which an employer is required to hold. Such records normally include personnel records, written terms of employment for all employees, payroll details, working time records and copies of any visa or work permits to confirm that all non-EEA employees are allowed to work in Ireland.

Can an inspector talk to my employees?

Yes, an inspector can undertake interviews with a sample of employees or all employees. An inspector will want to ensure that the records are an accurate reflection of working conditions and that the employees can confirm this. An inspector does not need an employer’s permission to talk to employees. However, we find in practice that the inspector will inform the employer that he/she intends to interview and specify the names of staff who will be interviewed.

What are the implications of an inspection?

If an inspector is happy that the business is in compliance, he/she will provide a letter confirming this. If there are minor instances of non-compliance, the inspector will write to the employer and require rectification of the issues within a set period of time.

If there is more serious non-compliance, an inspector can issue a compliance notice and a fixed payment notice. A compliance notice will require that the employer takes action or refrain from a certain action within a set period of time. The employer can appeal the decision of an inspector to the Labour Court within 42 days.

An employer can also be prosecuted if it fails to comply with the law, the inspection process or is repeatedly in breach.

Finally, an inspector will also share his or her findings with other agencies and governmental bodies, such as the Revenue Commissioners and the Department of Employment Affairs and Social Protection.

What can you do now to prepare for any future inspection?

Employers who are conscious of their legal obligations to their employees and have the records to show compliance, will generally satisfy an inspector of their compliance. At this point, it is useful to review what you could show an inspector in terms of records if one was to arrive at your business on Monday morning?

All records should be kept securely in compliance with the Data Protection Acts with restricted access to senior management and HR. 

As experienced by Ballydoyle racing yard, the implications of an inspection can be far-reaching and could present a significant cost for your business.

For more information on how to ensure compliance in the event of an inspection, get in touch with your usual Eversheds Sutherland advisor or a member of the employment law unit.

• Joanne Hyde
• Partner
• +353 1 6644 252
• +353 1 6644 252

• Margaret Gorman
• Partner
• +353 1 6644 325
• +353 1 6644 325

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