When employment and immigration law collide

Employment law and immigration law are distinct disciplines, yet their intersection creates real difficulties for Irish businesses, write Declan Groarke and Emma Quinn of Lewis Silkin.

Both are complex, frequently amended, and politically charged. Anyone working in or near HR and global mobility needs a working knowledge of each.

Think of them as siblings: they usually get along and often work well together, but occasionally they clash and create awkward problems.

Look more closely at what makes them different, however, and the potential for conflict becomes starker.

Discrimination risks in recruitment

A key pillar of Irish employment law is protection from discrimination – including on grounds of race and nationality. Immigration law, by its nature, creates a two-tier hierarchy of job applicants and employees, divided along nationality lines.

Under the Employment Equality Acts, indirect discrimination occurs where an apparently neutral provision or practice puts persons of a particular race or nationality at a disadvantage compared with others, unless objectively justified by a legitimate aim pursued through appropriate and necessary means.

An employer that refuses applications from candidates who require permission to work in Ireland would likely face an indirect discrimination claim.

The policy applies to everyone in theory, but in practice it affects non-EU nationals most acutely.

Employers implementing such a policy should be aware of the risk of an unsuccessful job applicant lodging a discrimination claim with the Workplace Relations Commission (WRC).

Whether the employer’s policy is lawful will then depend on whether it can be objectively justified before the WRC.

British decision

A British Employment Tribunal decision in Gharabli v Cedar Hope Care Services Ltd shows how immigration compliance can itself create discrimination risks.

The tribunal found indirect race discrimination where a care-services employer paid overseas workers on Skilled Worker visas £12.31 per hour, while domestic workers in the same role earned £10.50 per hour.

The gap arose because the Home Office sets minimum salary thresholds for Skilled Worker visa holders, while the employer paid domestic workers only the national minimum wage.

Mrs Gharabli was a domestic support worker. After her promotion to senior support worker, she earned only marginally more than overseas workers in junior roles.

The employer argued that it had paid every worker the rate legally required or permitted and that the only alternative was not to hire overseas staff.

The tribunal rejected that argument. It accepted that compliance with immigration salary thresholds was a legitimate aim, but held that compliance alone was not enough to justify the disparity.

The employer had failed to consider matching domestic workers’ pay to the overseas rate, or to show why doing so would be financially prohibitive.

The tribunal awarded £14,175 in compensation for injury to feelings, financial losses, and interest.

Parallels with Irish law

This British first-instance decision is not binding in Ireland, but it has clear parallels with Irish law. Section 17(2) of the Employment Equality Acts provides that action taken in accordance with the Employment Permits Act 2024 is not unlawful nationality discrimination.

That carve-out protects compliance with permits law, not pay policies beyond what immigration law requires.

The lesson for Irish employers is that complying with minimum remuneration thresholds won’t necessarily shield a pay policy from an indirect discrimination claim where domestic workers perform the same work for less.

Employers should match pay rates across the workforce for equivalent roles and document the evidence supporting any difference.

Right-to-work checks: a consistent process

Right-to-work checks sit at the intersection of immigration compliance and employment law. Under the Employment Permits Act 2024, employing or engaging a foreign national without valid immigration permission is a criminal offence.

Employers should carry out right-to-work checks on all employees consistently, before employment begins, without exception.

The documentation required will differ: an Irish or EEA/UK/Swiss national need only produce a passport, passport card, or EU national ID card, whereas a non-EEA/UK/Swiss national will typically need to present a passport and Irish Residence Permit (IRP) card.

Original documents should be inspected, and employers should maintain a written record of what was checked, when, and by whom.

A right-to-work check isn’t a one-off event. Where the initial check doesn’t demonstrate a right to work for the duration of employment, repeat checks will be required before the employee’s permission expires.

For employment-permit holders, employers must retain records under the 2024 act:

• The individual’s employment and its duration,
• The particulars of the permit,
• Details of board and accommodation (if applicable),
• Remuneration paid, and
• The number of EEA and non-EEA nationals employed by the company at the time.

Employers should keep these records for five years from the date the permit was granted or for the duration of employment, whichever is longer.

Loss of permission: dismissal and fair procedures

Section 6(4)(d) of the Unfair Dismissals Acts 1977-2015 says that a dismissal is not unfair if the employee is “unable to work or continue to work in the position which he held without contravention (by him or his/her employer) of a duty or restriction imposed by or under statute, or instrument made under statute”.

The WRC decision in Poliane Fernandes Lima v Elland Distributors Limited t/a Born Clothing underlines why fair procedures are important, even if it looks like an employee may not have a legal right to work in Ireland.

In November 2023, the complainant applied to renew her immigration permission, due to expire on 23 January 2024.

The respondent sought legal advice and terminated her employment on 25 January. Three days later, on 28 January, her permission was renewed.

The adjudication officer noted that the respondent’s legal advice failed to mention the Department of Justice’s grace period.

Where an IRP card has expired before a renewal comes through, the employee can still remain in the State on their existing conditions for up to 12 weeks (previously eight weeks at the time the complainant’s employment was terminated), provided they apply before the expiry date and submit all required documentation.

The complainant had applied well before expiry and had given the respondent proof of her application. She also met the criteria for the grace period.

The adjudication officer found that the respondent, by acting on incorrect information and denying the complainant fair procedures, had unfairly dismissed her.

Tension and challenges

This decision reflects the tension and challenges that can arise when employment-law rights and immigration rules collide.

On one hand, an employer needs to avoid committing a criminal offence by employing someone without valid permission to work. On the other, an employer must conduct all necessary investigations to ensure it is correctly interpreting the relevant immigration and employment rules.

Premature termination based on a misunderstanding of those rules will not shield the employer from a successful unfair-dismissal claim.

Declan Groarke is managing associate at Lewis Silkin; Emma Quinn is a senior associate at Lewis Silkin.