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by Jennifer Cashman, Partner, Practice Group Leader of the RDJ LLP Employment Group.
Employers will of course be aware that they may be subject to an inspection by the Workplace Relations Commission (“WRC”) to inspect compliance with all employer statutory obligations. WRC Inspections Service carry out inspections at employers’ workplaces to check compliance with employment legislation in areas such as in national minimum wage, working time and rest breaks. They also have powers to investigate compliance with Employment permit obligations.
An Inspector can also issue a compliance notice, directing an employer to do something or to refrain from doing something for certain other contraventions. Any failure or refusal to rectify issues of non-compliance detected can result in criminal prosecution before a district court. That said, over 97% of inspections conclude without recourse to the courts.
However, employers may not be aware that such WRC inspections can result in the imposition of on the spot fines by the WRC and there has been a very recent and significant development in this.
In that regard, the Minister of State for Business, Employment and Retail, Neale Richmond TD, announced new on the spot fines for businesses in January. The Workplace Relations Act 2015 (Fixed Payment Notice) Regulations 2023 (the “Regulations”) were published on 12 January 2024.
It is very important to note that on the spot fines are imposed per breach, which means that large employers could be subject to significant penalties in this regard.
New Regulations
A number of offences were already the subject of a fixed payment notice in lieu of prosecution under 2015 Regulations. However, the opportunity has been taken now to revoke the 2015 Regulations and incorporate these offences into one consolidated new set of Regulations. The form of notice that issues with a fixed payment is prescribed by a set of 2017 Regulations. These have also been revoked and a prescribed form has been incorporated into the Regulations.
The offences that are now subject to a Fixed Payment Notice in lieu of prosecution are as follows:
|
Offence |
Fine |
Legislation |
| An employer who fails to display a notice stating whether tips and gratuities are distributed amongst employees and how they are distributed |
€500 |
Sections 4E (2) of the Payment of Wages Act 1991 (as inserted by the Payment of Wages (Amendment) (Tips and Gratuities) Act 2022) |
| An employer who fails to display a notice stating whether tips and gratuities are distributed amongst contract workers and how they are distributed | €500 | Sections 4F(3) of the Payment of Wages Act 1991 (as inserted by the Payment of Wages (Amendment) (Tips and Gratuities) Act 2022) |
| An employer who fails to provide a written statement specifying the total amount of tips and/or gratuities distributed by the employer for that period or leads customers to believe that a mandatory charge, labelled as a “service charge” or otherwise, shall be distributed to employees. | €750 | Sections 4B (8) of the Payment of Wages Act 1991 (as inserted by the Payment of Wages (Amendment) (Tips and Gratuities) Act 2022) |
| An employer who leads customers to believe that a mandatory charge, labelled as a “service charge” or otherwise, shall be distributed to employees | €750 | Sections 4D (2) of the Payment of Wages Act 1991 (as inserted by the Payment of Wages (Amendment) (Tips and Gratuities) Act 2022) |
| An employer who fails, without reasonable cause, to provide an employee with their terms of employment within one month of their commencement date. | €1,500 | Sections 6B (1) of Terms of Employment (Information) Act 1994 |
| An employer who deliberately provides false or misleading information to the employee about their employment | €1,500 | Sections 6B (2) of Terms of Employment (Information) Act 1994 |
| An employer fails to provide a written statement of an employee’s hourly rate of pay for any pay reference period at the employee’s request | €1,500 | Section 23 of the National Minimum Wage Act 2000 (No. 5 of 2000) |
| An employer fails to provide their employee with a clear written statement of their wages and the nature and amount of any deductions | €1,500 | Section 4(4) of the Payment of Wages Act 1991 (No.25 of 1991) |
| An employer fails to initiate in consultations with employees’ representatives and to supply them with all relevant information | €2,000 | Section 11 of the Protection of Employment Act 1977 (No.7 of 1977) |
What do employers need to do on foot of these new Regulations?
Employers need to ensure that they are in full compliance with the legislative provisions outlined above. In announcing the new Regulations, the Government confirmed that Inspectors from the WRC will continue to visit businesses across Ireland to ensure they are operating in line with all employment legislation. If inspectors find employers in breach, they may be liable for the fines detailed above. If the employer does not make the payment on foot of the fixed payment notice within 42 days, they are referred to the WRC’s internal legal affairs committee, who will in turn determine whether to proceed to prosecution.
About the author
Jennifer Cashman is Practice Group Leader of the RDJ LLP’s Employment Group. Her focus is on providing strategic business advice and practical, commercial solutions for clients across a range of industry sectors. She advises multinational companies in the technology, pharmaceutical, medical devices and diagnostics sectors and also provides employment advice to Public Authorities, Universities and a number of primary and secondary schools. Jennifer is a member of the Firm’s Cyber and Data Protection Team and advises on a broad range of data management issues including GDPR, data breaches, data subject rights, international data transfers, employee data and compliance training. Jennifer has considerable experience advising clients on the practical application of all aspects of employment law and HR issues.
