It may come to light that an employee who once had the right to work in Ireland may no longer have such permission. For example, they may have forgotten to apply for a renewal of their immigration permission before it expired or they may not be able to provide evidence of their immigration status during a repeat right to work check. These scenarios may produce a heart-in-mouth moment for a manager or HR.
In this instalment of our sibling rivalry series, we look at unfair dismissal as the "helicopter parent" in the employment and immigration law relationship: the area of law that steps in to protect employees even when their immigration status appears uncertain. The message from the Workplace Relations Commission (WRC) is clear, an employer cannot simply set aside fair procedures because an employee's right to work is in question.
Under section 6(1) of the Unfair Dismissals Act 1977, a dismissal is deemed unfair unless the employer can show there were substantial grounds justifying it. Section 6(4) sets out the grounds on which a dismissal shall be deemed not to be unfair. These include capability, conduct, redundancy, and critically for the purposes of this article, the ground at section 6(4)(d):
"the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute."
At first glance, this...
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