2023 – another busy year for the WRC

So what kept the WRC busy in 2023? It recovered a whopping almost €2 million in unpaid wages for employees showing that basic compliance with pay entitlements continues to be an issue across many sectors. The report notes that 2023 was the first full year of normal service for the WRC since 2019, taking into account the challenges the pandemic brought in how the WRC operated over the last number of years. As well adjudicating on claims of alleged employment law breaches, the WRC has responsibility for carrying out workplace inspections to assess employment compliance with Irish employment law and provides conciliation, mediation, advisory and information services for employers and employees. The report shows the WRC was busy across all those service areas in 2023.

Inspections

The report notes that 6,519 workplace inspections were commenced, with a general focus on minimum wage compliance across various sectors as part of the WRCs national minimum wage information and inspection campaign last year. A total of 4,727 WRC inspections were completed in 2023 and €1.95m recovered in unpaid wages as a result. This shows the crucial role the WRC plays in the recovery or unpaid wages. Of those 4,727 inspections, some 2,221 employers were found to have contravened employment law and the WRC prosecuted 125 organisations for continued non-compliance following inspections. The largest number of inspections by far were in the food services sector, with the wholesale and retail trade sector also having a significant number of inspections carried out.

Over half of the WRC inspections were unannounced and this highlights the importance for employers in having your records up to date and your teams properly prepared for when an inspector may come calling. Generally, these initial visits are to profile whether there may be potential non-compliance issues and determine then if a full inspection should be carried out. Being in a position to answer initial questions and provide records quickly could reduce the potential for a full-scale inspection taking place. Often, these initial visits take place to verify the information provided in employment permit applications so it’s important to ensure that what an employer has set out in such applications is accurate and can be backed up in the event of an inspection.

Hearings/Complaints

The number of hearings scheduled by the WRC increased by 13% on the previous year, and the number of hearings held by the WRC increased by 12%. This reflects what we are seeing in practice with hearings being scheduled more quickly than in previous years. While overall, the number of complaint applications has decreased by a mere 1%, the number of complaints being brought by individuals has increased by 11% i.e. when employees do submit claims, they are often submitting multiple complaints. Perhaps there is a trend of throwing the kitchen sink at it to see what sticks!

Pay, unfair dismissal and equality/discrimination claims are the most prevalent with unfair dismissal claims having increased 21% on the previous year (likely as a result of the large-scale restructuring that took place across many sectors in 2022 and 2023).

Protected disclosure claims are up, and the WRC report notes a considerable increase in complaints under the Protected Disclosure Act 2014, a staggering 201% increase when compared to 2022.

In terms of the running of hearings, 30% were held remotely which is a welcome development for international employers reducing the need for witness travel. The WRC notes a pattern of hearings taking longer or requiring additional days as a result of complex cases and procedural requirements at hearings such as the affirmation of oath, examination/cross examination under oath required and adjournments. This is certainly an important take away for employers in considering the time and costs involved in defending claims. Perhaps another reason to explore the WRC’s mediation options when a claim is received?

Claims for age discrimination have reduced and the majority of discrimination claims were under the ground of disability, followed by gender, however, a considerable increase of 135% was noted under the ground of sexual orientation. Complaints under the race ground increased by 64% since 2022.

Appeals of WRC decisions to the Labour Court remained low at approximately 11%.

Notable Decisions

The report sets out a number of notable WRC decisions and it would be prudent for all employers to review these as they may be indicative of the approach the Adjudication Officers could take towards similar cases. These include cases on:

• Sexual harassment and the importance of employers following fair and thorough procedures when investigating such allegations.

• In this case, the Adjudication Officer awarded the maximum award of two years’ remuneration having regard to how poorly the policy was followed and the effects of the discrimination on the complainant, further noting that awards should be effective, proportionate and dissuasive. This amounted to €53,560. They further directed that all supervisory and management staff receive full training in their Dignity at Work policy.

• Mandatory retirement ages highlighting the importance of employers having regard to the Code of Practice on Longer Working and not just relying on blanket objective justifications for a particular retirement age when those justifications bear no relevance to the employee in question or their role.

• In this case the Adjudication Officer ordered that the complainant be re-instated in his previous role with effect from the date of his retirement

• The WRC not having jurisdiction to consider trade disputes where the complaint is lodged by one worker in relation to another.
• The obligations of employers in a collective redundancy situation (the “Debenhams” case which we wrote about previously here). This case was subsequently appealed to the Labour Court, which upheld the WRC’s decision regarding the employers’ obligation to consult which we also wrote about here. However, unlike in the WRC, the Labour Court found that Debenhams did satisfy their information obligations under the Act and that they provided the relevant information when requested.
• Statutory sick leave entitlements and whether an employer’s existing scheme was more favourable overall.

• In finding for the employer in this case, the Adjudication Officer held that it was clear that eight weeks’ paid sick leave was more beneficial than three days and 100% of pay is more beneficial than 70% of pay under the statutory scheme. They also took into account the fact that the respondent’s sick leave scheme was the result of negotiations with unions and that since the enactment of the collective agreement, the parties had not initiated any discussions to change the policy. The Adjudication Office held that the policy of having three ‘waiting days’ and the requirement to have six months’ continuous service was outweighed by the duration of paid sick leave and the amount of sick pay.

• Right to return to work following maternity leave

• In finding for the employee in this case, the Adjudication Officer found that the complainant had been demoted and side-lined on her return from maternity leave; that both the complainant’s job and prior reporting line disappeared; and that there was a clear thread of discrimination from the point of her return from protective leave to the point when she went on certified sick leave. The Adjudication Officer found that the respondent did not understand its legal duties and obligations to female employees re-entering the workplace on return from a period of protective leave. The complaint was awarded €31,000, for “the effects of discrimination”, which was the equivalent of approximately one year’s salary.

• Penalisation for having made a protected disclosure.

• As well as finding for the employee in respect of her unfair dismissal and terms of employment claim, the Adjudication Officer also held that the nature and extent of the penalisation following the making of a protected disclosure were of such an egregious nature as to merit the maximum award of compensation. The complainant was awarded €91,000, amounting to five years’ remuneration. This was a major decision which, although described by the Adjudication Officer as being a “most exceptional” case, does demonstrate how high the awards can be in protected disclosure cases. This should be a warning to all employers to treat these matters seriously, particularly taking into account the massive increase in protected disclosure complaints being lodged with the WRC at present.

Mediation

Given that fact that WRC hearings are now held in public, with the parties being named in most cases, it’s no surprise that there has been in increase in the number of parties seeking to access the WRC’s mediation services to try and resolve disputes without the need for a public hearing. There was a 19% increase in the number mediations held when compared with the previous year, with 127 mediations being held over the course of 2023. This is a 57% increase when compared with 2021 and the overall resolution rate of mediation increased to 56% in 2023, so it seems mediation is here to stay and parties are utilising it.

Since September 2022, the WRC has been piloting a ‘late request’ mediation service, whereby parties who have an upcoming scheduled hearing can access mediation without postponing the hearing. These late requests can’t always be facilitated and it will often depend how close to the hearing date the request is made and whether there are any WRC mediators available. However, this service has a 52% success rate so definitely a route for employers to consider. We find this option arises where employers may not have assessed the risks of the case until the hearing is scheduled or where material witnesses that are critical in assisting employers in defending the case are no longer available.

Codes of Practice

The WRC were under immense pressure during 2023 to finalise and publish the Code of Practice on the Right to Request Remote/Flexible Work so that both employers and employees had more clarity on how to deal with these requests. This Code of Practice was significantly advanced by the WRC in 2023 and was finalised in early 2024, which we wrote about previously here.

Conciliation

Interestingly, the rate of success in conciliation conferences has held steady in 2023 at a very strong 85% showing that parties on all sides of the table are genuinely engaging in these processes and compromising successfully to avoid industrial action.

Information Services

The WRC was extremely busy with this service, dealing with over 60,000 information enquiry calls in 2023. This was an increase of 3% on the previous year with over 4.6m page views on their website in 2023. Clearly people are making more calls to understand their employment law rights and options. Queries on employment permit matters and lodging claims were the biggest topics for calls to the WRC. Wages and working hours queries were the next most frequent, with queries around unfair dismissal, redundancy and terms of employment coming in next. Bullying, sick leave and discrimination queries and other unspecified topics made up the balance of the calls. This is interesting as we have seen a marked increase in employers receiving complaints around bullying and discrimination across 2023 and 2024 so would perhaps have expected these queries to rank higher. Unsurprisingly three quarters of the callers were employees.

Other activities

The WRC is keen to follow the Public Service’s Digital First Strategy and started working on an e-complaint form in 2023 which we expect will be finalised and rolled out in 2024. This should make the process of submitting complaints more streamlined and efficient for employees.

In keeping with what we are seeing across the labour market and the increased use of contingency workers and employer of record services, the number of employment agency licences processed by the WRC increased by 10% in 2023. If you are using employment agencies in your business, make sure they are properly licenced.

Key Takeaways

The report highlights that protected disclosure claims are significantly on the rise, and we expect that to continue. Employers should ensure that they have appropriate policies and reporting channels in place and tread carefully where an employee states that they have raised a protected disclosure.

We expect the trend of multiple claims being lodged by individual employees to continue and it’s unusual now to receive a WRC claim form that only lists one specific claim.

Mediation continues to be a helpful way of avoiding public hearings and resolving matters quicker and in a more cost-effective way for employers without adverse publicity. We recommend employers consider this option early on when they receive a claim.

With gender, disability and race being the top three grounds cited within the discrimination claims referrals to the WRC, employers should carefully review their anti-bullying, harassment and discrimination policies and continue to provide ongoing training to their staff on unacceptable workplace conduct.

Claims before the WRC are generally becoming more complex and expensive for employers than in previous years and we continue to see WRC hearings being an easy source of news for media. One thing’s for sure, the WRC will continue to be busy!

For further information on this topic or any employment law matter, please contact one of our team.