For non-EEA nationals who are seeking employment in Ireland, obtaining an employment permit is a mandatory step. The Employment Permits Act 2024 (the “2024 Act”) was signed into law on June 25, 2024, taking effect on the 2nd September 2024. The 2024 Act introduces significant updates to Ireland’s employment permit framework. This act emphasises strict compliance on employers who employ foreign nationals without valid permits. If found to be in breach of the Act, employers will face fines of up to €250,000, imprisonment up to 10 years, or both. This reflects Ireland’s strengthened stance on regulated employment practices, aligning with the evolving labour landscape.
An area of significant challenge for employers is around permit renewal. Under the 2024 Act, a non-EEA national without a valid permit is considered to be in the state unlawfully, exposing both the employer and employee to legal sanction. An Employer can easily, through lack of process find themselves employing staff whose permits have expired.
A recent Unfair Dismissal ruling before the Workplace Relations Commission (WRC), examined the implications for employers who dismissed an employee who was awaiting permit renewal. The WRC’s judgment could guide future cases where delays or administrative issues affect employment continuity during permit renewal processing. This case highlights the importance for employers to act prudently in employment permit compliance to avoid penalties and legal disputes.
Case Study: Polaine Fernandes Lima v Elland Distributors Born Clothing ADJ-00049872
Background:
Ms. Lima, s foreign national, working on a permit (the “Employee”) commenced employment with Elland Distributions Born Clothing (the “Employer”) in or around August 2022, on a fixed term contract set to expire on the 31 December 2023. . At the time, she had been residing in Ireland for six years, and was required to renew her Irish Residency Card (IRP card) annually.
The Employees permit was due to expire on the 23 January 2024. On the 20 November 2023 she applied to renew her IRP. Throughout, she informed payroll of her status, who raised no concerns regarding the impending expiry of her visa.
Having worked the week of the 20 January 2024, her employer, on the 25 January dismissed her without notice, on the grounds that her visa had expired on the 23rd.No further discussion or right of appeal was offered.
The Employer, in defence of the claim stated they only discovered the employees IRP card was due to expire on 23 January, having reviewed the file that day. In response it took legal advice, which took 2 days and dismissed her after work on the Friday, two days after the permit had expired. It was noted that The Employer conceded he had no knowledge that the Department of Justice allows an 8-week grace period for visa renewals. They also subsequently conceded that the Employee’s visa was renewed on 28 January 2024, within her notice period.
The Department of Justice Guidelines – A brief Summary
According to the Department of Justice guidelines, two possible situations may arise:
| Situation 1 | Where the renewal request was done prior to the expiration date
The individual can contact the immigration office showing that they have an appointment book for the renewal. The office will give the individual a breathing period of 8 weeks starting on the day of expiry of the IRP. The employee is able to work for the duration of the breathing period, as he/she will remain in the state on the same conditions of his/her current IRP pending renewal. |
| Situation 2 | Where the employee applies for renewal after the expiration date
The individual is considered out of permission and therefore not currently legally permitted to remain and/or work in the State. |
WRC Findings:
The adjudication officer in the WRC was satisfied that the Employee met the criteria set out by the Department of Justice for an 8-week grace period (situation 1 above). As such, the adjudicator found that the Employee’s dismissal by the Employer was unfair. The Employer dismissed the Employee due to an expired visa without allowing any discussion, investigation, or opportunity for appeal, even though the Complainant informed him that her visa would be renewed on 28 January, one working day later. The adjudicator noted that the Employer failed to conduct even minimal research, as information on visa renewal procedures was readily available on the Department of Justice’s website.
The adjudicator concluded that the dismissal lacked procedural fairness and was based on incorrect information. Given that the Complainant has been unemployed since her dismissal, despite extensive job-seeking efforts, the adjudicator awarded her €25,000.
Key Takeaway for Employers:
- Compliance with Employment Permits Act 2024: Employers must ensure that non-EEA nationals have a valid employment permit (IRP) before hiring. It is crucial to conduct a right to work check and verify that the permit is valid and up-to-date before employment begins. Regular monitoring of employees’ permits is essential and employers must maintain up-to-date records of each employee’s right to work to ensure ongoing compliance.
- Grace Period for IRP Renewals: Employers should be aware of the 8-week grace period provided by the Department of Justice. If an employee’s IRP has expired but they have applied for renewal on time, they can continue to work legally for up to 8 weeks while awaiting the new permit. Employers should factor this grace period into their decision-making process, and request the employee to show evidence that they have applied for a renewal of their permit.
- Stay Up-to-Date: Employers should stay informed about updates and guidance from the Department of Justice and the Department of Enterprise, Trade, and Employment regarding employment permits. This includes any changes to regulations and application procedures to ensure continuous compliance.
- Conditional Employment for Permit Holders: Employers should ensure that continued employment for employees who require an Irish residency permit or employment permit is strictly conditional upon maintaining valid documentation. Employment contracts should clearly state that employment is contingent on the employee holding a valid permit at all times.
- Unfair Dismissal Claims Risk: Employers should be aware that, even if an employee lacks a valid permit, they may still have the right to pursue a claim under the Unfair Dismissals Acts, 1977 where such person has greater than 12 months service. Dismissing an employee solely due to an expired permit, particularly without adhering to fair procedures, could expose the employer to a claim for unfair dismissal.
- Consider Lay-Off as an Alternative to Dismissal: Where an employee’s permit or residency status is under renewal, employers may consider placing the employee on unpaid lay-off pending the outcome. This option is advisable only if the employee’s contract includes a lay-off provision specifying that the employee is not entitled to be paid during the lay-off period. This approach can provide a fair alternative to immediate dismissal, supporting the employee through the permit renewal process while managing legal risks.
Steps to consider when terminating an employee who’s permit has expired:
Step 1 – Verify Permit Status: Confirm the employee’s work permit status, checking for any extensions or renewals. Even without a valid permit, determine if the Department of Justice’s 8-week grace period might apply.
Step 2 – Communicate with the Employee: Upon identifying an expiry, promptly notify the employee, underscoring the legal requirement for valid work authorisation in Ireland. Invite them to explain their circumstances, which may include an active renewal or delays, and document all related communications.
Step 3 – Allow Time for Renewal and Follow Fair Procedures: If the employee is actively renewing their permit and has the protection of the Unfair Dismissals Acts, 1977 (e.g., with 12+ months’ service), employers must ensure fair procedures. Allow reasonable time to resolve the issue and review the employee’s renewal efforts. Inform them early on that termination is likely, if no solution is found within the period provided.
Step 4 – Issue Termination Notice with Appeal Option: If no permit is secured in time, issue a formal termination notice citing lack of authorisation to work. Ensure that the employee is offered a right of appeal of any decision taken.
This article was co-written by Don McGann (Partner), Robin Hyde (Partner) and Gloria Malandra (Pre-Trainee)
