11 June 2024
The Workplace Relations Commission (WRC) recently published its annual report for 2023. The report makes interesting reading for practitioners and employers with an eye on areas of focus of the WRC and trends in types of claims, investigations, and prosecutions. The report reflects an increase in complaints received and hearings conducted. It also reports on almost €2m recovered in respect of unpaid wages.
2023 saw an increased focus on inspections on minimum wage matters and on general employment legislation compliance within the construction sector with a mix of announced and unannounced workplace inspections. The report also reflects the activity of the Labour Court noting that in the context of the overall number of complaints submitted to the WRC, the number of appeals to the Labour Court is relatively low. The report highlights the WRC’s activity in relation to building a new e-complaint form with a document upload facility which is due to be delivered in 2024.
The Workplace Relations Commission Report 2023 key results include:
€1,950,000 recovered in unpaid wages
14,158 specific complaints received
+11%
6,519 inspection visits
The WRC received 61,823 Infoline calls
4,765 adjudication hearings
+12%
2,951 adjudication decisions issued
+50%
The Inspection and Enforcement Services of the WRC conduct workplace inspections of employment records to ensure employers’ compliance with employment law. Part of the inspection process involves inspectors visiting places of employment (these visits may be either announced or unannounced).
The inspection process typically involves the following steps:
| Inspections | 2022 | 2023 | Difference (% increase) |
|---|---|---|---|
| Employers Inspected | 3,943 | 4,727 | 20% |
| Employers in breach of employment law obligations | 1,763 | 2,221 | 26% |
| Unpaid Wages Recovered (€) | €1,405,126 | €1,950,601 | 39% |
| Number of Specific Complaints Received | 708 | 957 | 35% |
| Total Number of Workplace Inspections | 5,820 | 6,519 | 12% |
The Inspection and Enforcement Services of the WRC operate on a compliance model. This means that the focus of inspections is to bring non-compliant employers into compliance with their legal obligations.
In 2023, some 2,221 employers were found to have contraventions. However, the majority of employers co-operated with the WRC and became compliant, resulting in 125 prosecutions being undertaken.
Of the 125 prosecutions that were taken in 2023, 111 resulted in prosecution, probation, charitable donations etc. In addition, WRC inspectors issued 10 fixed penalty notices and 34 compliance notices in 2023.
| Enforcement Outcomes | 2022 | 2023 | Difference (%) |
|---|---|---|---|
| Convicted | 24 | 69 | 187.5% |
| Probation Act | 38 | 35 | -7.9% |
| Charitable Donations | 7 | 7 | 0% |
| Withdrawn | 8 | 5 | -37.5% |
| Dismissed | 2 | 1 | -50% |
| Struck Out | 2 | 4 | 100% |
| Decision not to prosecute | 4 | 1 | -75% |
| Unable to prosecute | 4 | 3 | -25% |
Following the increase in the National Minimum Wage in 2023, the WRC conducted a national information and inspection campaign during the first quarter of 2023. The purpose of this was to create awareness of the increase and to undertake inspections to ensure compliance with the increased rate.
The WRC inspected 672 employers. Of the employers inspected, only 135 were complaint and, as a result of the inspection, 443 became compliant. Following the campaign, 3 employers were prosecuted and the WRC has reported that 72 cases are still ongoing.
In a similar approach to the National Minimum Wage Campaign, the WRC also facilitated a 2 week Construction Sector campaign. During the campaign, a total of 206 announced and unannounced inspections took place. This was in line with the European Labour Authority's (ELA) information and enforcement activities for the Construction Sector in 2023.
The WRC inspected a large variety of employers in 2023.The top five inspected sectors were as follows:
| Sector | Employers Inspected | Incidence of breach (%) | Unpaid Wages Recovered |
|---|---|---|---|
| Food Service Activities | 1,558 | 58% | €565,409 |
| Wholesale & Retail Trade | 1,388 | 38% | €385,200 |
| Hair & Beauty | 376 | 58% | €69,995 |
| Construction | 223 | 25% | €109,893 |
| Beverage Service Activities | 222 | 54% | €159,077 |
When examining the convictions made during 2023, we can see that the sector with the highest levels of cases is Food Service Activities. Prosecutions by sector were as follows:
| Sector | Cases 2023 |
|---|---|
| Food Service Activities | 47 |
| Hair and Beauty | 7 |
| Wholesale & Retail Trade | 5 |
| Security | 1 |
| Transport | 1 |
| Other Service Activities | 2 |
| Beverage Service Activities | 1 |
| Total | 64 |
Of the 14,158 individual complaints received, some 3,662 (26%) related to pay, 1,817 (13%) related to Discrimination, Equality & Equal Status – remaining stable at 13% on the previous year, 1,875 (13%) related to Unfair Dismissal – an increase of 21% compared to 2022, while Terms & Conditions of Employment accounted for 1,387 (10%) of complaints - an increase of 13% on 2022. The WRC noted a rise in complaints under Schedule 2 of the Protected Disclosures Act 2014 (99 complaints, a rise of 201% on 2022).
The Adjudication Division continues to receive groups of complaints (multiples) where the same respondent has been cited. Of the 6,172 complaint applications received between 1 January and 31 December 2023, 4% (271) related to multiples, a substantial decline in multiples from 2022.
In the below infographic we have outlined the top 10 complaints by complaint type. The leading complaint is pay related issues.
The WRC closed almost 15,000 complaints in 2023, with the majority of these complaints, 51% (7,623) resolved through withdrawal, either before, after or during the Adjudication process, or through Mediation Services. 2,951 Decisions and Recommendations were issued by the Adjudication Services, a continued increase on previous years, up 50% (1,968) on those issued in 2022.
428 referrals were received under the Equal Status Acts 2000 – 2018, with 733 specific grounds cited. Referrals under the ground of Disability continue to be the most common ground for Equal Status claims.
| Equal Status Ground | 2022 | 2023 | Difference (%) |
|---|---|---|---|
| Age | 35 | 37 | +6% |
| Civil Status | 37 | 38 | +3% |
| Disability | 157 | 170 | +8% |
| Family Status | 53 | 68 | +28% |
| Gender | 49 | 65 | +33% |
| Membership of the Traveller Community | 150 | 132 | -12% |
| Race | 133 | 105 | -21% |
| Religion | 25 | 30 | +20% |
| Sexual Orientation | 12 | 15 | +25% |
| Accommodation | 97 | 73 | +25% |
In 2023, 1,045 complaints were referred under the Employment Equality legislation citing 1,458 specific grounds of discrimination. This is a decrease of 15% of referrals under the legislation compared to 2022 (1235) when 1,1677 specific grounds were cited. Within the overall referrals, the highest number of referrals were under the ground of Disability (331) and Gender (322). The most sizeable change on the figures provided for 2022, was an increase of 135% on the basis of Sexual Orientation and claims citing the ground of Race increasing to 64% on the previous year.
The report notes a reduction of 66% on Age discrimination claims, and a reduction of 31% of claims citing the ground Membership of a Traveller Community, compared to the figures recorded in 2022.
32 referrals were received under the Pensions Act 1990 in 2023: a decrease of 26% of referrals received in 2022.
The WRC reported that 324 Adjudication Officers’ Decisions and/or Recommendations were appealed to the Labour Court, this made up approximately 11% of decisions. From this cohort of decisions 54% (176) were upheld, 22% (68) were varied 23% (75) were overturned and the remaining group were out of time to appeal.
| Breakdown of specific complaints by ground | 2022 | 2023 | Difference (%) |
|---|---|---|---|
| Age | 514 | 176 | -66% |
| Civil Status | 65 | 55 | -15% |
| Disability | 349 | 331 | -5% |
| Family Status | 183 | 183 | 0% |
| Gender | 286 | 322 | 13% |
| Membership of the Traveller Community | 26 | 18 | -31% |
| Race | 166 | 272 | 64% |
| Religion | 65 | 47 | -28% |
| Sexual Orientation | 23 | 54 | 135% |
| Total | 1,677 | 1,458 | -13% |
The WRC Annual report provides an overview of notable WRC Adjudication Decisions in 2023. We picked the following as our top 4 cases for employers to learn from in 2023.
An Employee v. Wholesale Food & Beverage Company, ADJ-00044889
Claim: Sick Leave Act 2022 (the “Act")
This WRC decision came as the first dealing with a challenge to sick leave entitlement, as provided for under section 5 of the Sick Leave Act.
The Employer’s sick leave scheme provided for 40 days full pay in a rolling 12 month period, with a waiting period of 3 days.
HELD: The Adjudication Officer (AO) determined that there had been no breach of the Act in circumstances where the Employer ‘s sick leave scheme was “as a whole, more favourable to the employee than the statutory sick leave”, (noting the three day waiting period required for Illness Benefit by the Department of Social Protection.).
A Worker v a Massage Therapy Business, ADJ-00043225
Claim: Protected Disclosure Act 2014 (the “Act”)
The Employee raised health and safety concerns to her managers, alleging she was required to provide additional services of a sexual nature. The Employee alleged that when the matter was raised, she was informed she “could say no” but she “wouldn’t get more clients”. The Employer did not appear or provide a defense to the claim.
Held: The AO found that “The Complainant was an exceptionally vulnerable worker. As a result of her protected disclosure, she was subjected to a change in attitude towards her, marginalisation, cuts to her working hours together with harassment, intimidation and coercion.” The AO awarded the Employee €91,000 – the first time a Complainant had been awarded the full 5 years’ remuneration under the Act.
An Employee v. A Telecoms Company, ADJ-00033976
Claim: Employment Equality Acts 1998 to 2021, Maternity Protection Acts 1994 to 2022
The Employee alleged that she returned from maternity leave (ML), to find she had not been restored to her role, had been given lesser duties, a lower level of responsibility, and excluded from meetings she would have attended prior to her ML.
The Employer alleged they had expanded while the Employee had been on ML, and she had been provided “suitable alternative work” on her return.
Held: The AO found that the Employee had raised an inference of discrimination on the gender ground, which the Employer had failed to rebut, and the Employee was awarded €31,000 in compensation.
An Employee v An Employer, ADJ-00040021
Claim: Employment Equality Acts 1998 to 2021
The Employee alleged sexual harassment against a co-worker, filing a claim with the WRC alleging the investigation was inadequate and in breach of the company’s Dignity at Work policy.
The Employer alleged the incident was fully investigated, including review of CCTV footage, and claimed this did not show inappropriate contact.
Held: The AO was critical of the investigation process, the appeal and the lack of weight given to reactions apparent in the CCTV footage. The AO noted that “This is a large organisation with the resources to ensure their policies are complied with”. The Employee was awarded €53,560.
Please contact Aoife Newton and the KPMG Law LLP Employment Law Team if you have any queries on the report or require any assistance with claims, inspections or enforcement proceedings.
