Discrimination is the older cousin who turns up uninvited, not quite part of the immediate family, but close enough to cause real tension with their presence. The concept of discrimination cuts across employment and immigration law, raising questions about how each sibling behaves and whether the rules that they follow are fair to everyone in the playroom. In this article, we explore how discrimination law interacts with the immigration and employment law landscape. Our FAQs below explore the employment law challenges that employers may encounter in implementing recruitment policies that are influenced by right to work considerations.
How does the concept of discrimination interact with employment and immigration law?
One key pillar of Irish employment law is protection from discrimination. This includes discrimination in relation to race and nationality. Immigration law, by its nature, creates a two-tier hierarchy of job applicants and employees, divided along nationality lines. Irish, EU/EEA (including Swiss nationals) and UK nationals have an automatic right to work in Ireland. They can start any job with nothing other than a normal background check of their nationality, qualifications and references. Non-EU nationals, usually, need something extra like an employment permit and/or an Irish Residence Permit card with an appropriate Stamp.
To hire a person who does not already hold some form of right to work in Ireland, or whom may have a time-limited permission, an employer will likely need to support a candidate with an application for an employment permit.
In addition to existing requirements, recent years have also brought increases in the minimum annual remuneration thresholds required to be eligible for the different types of employment permits; with further increases to come. These increasing costs have prompted employers to ask what, if anything, they can do when it comes to managing recruitment for a particular role where the recruitment of individuals who require employment permits may be commercially unattractive or not feasible.
Irish citizens, EU/EEA nationals (including Swiss nationals), and UK nationals (who benefit from the Common Travel Area arrangements) all have an automatic right to work in Ireland without obtaining further permission. The employment permit requirement therefore falls exclusively on non-EEA nationals, creating a clear intersection between immigration and the protected ground of race (including nationality) under the Employment Equality Acts 1998-2015 (the “Employment Equality Acts”).
FAQ 1: Can an employer adopt a blanket policy of declining all candidates who require immigration permission to work in Ireland?
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 particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. An automatic rejection policy based on right to work status is, on its face, indirectly race discriminatory. This is because it technically applies to all applicants, but in practice has a particularly detrimental effect on a particular group of applicants, namely non-EU nationals.
An employer implementing an automatic rejection policy should be aware of the risk that an unsuccessful job applicant may lodge a discrimination claim with the Workplace Relations Commission (the “WRC”). The question of whether the employer’s policy is lawful will then depend on whether the employer can objectively justify that policy before the WRC.
A key consideration for SMEs might be the application cost (and associated potential legal and administrative costs) to employ a non-EEA national in Ireland. But would the cost be a good enough reason to operate this kind of policy?
There is no Irish case law on this point but if raised, the WRC will likely follow the UK case of Osborne Clarke v Purohit. In Osborne, the Employment Appeal Tribunal held that a policy of not accepting applications from non-EEA nationals was discriminatory. The case concerned a law firm’s policy of excluding candidates from trainee solicitor roles if they did not already have the right to work. The firm thought that, because it was a training role, a work permit application was unlikely to succeed. In finding against the firm, the Employment Appeal Tribunal said that the firm’s policy amounted to unlawful indirect race discrimination which could not be justified. The Employment Appeal Tribunal rejected the firm’s cost-based arguments, especially considering the firm’s ample resources.
For Irish employers, it is also important to note that there is no obligation on an employer to bear the cost of an employment permit application. The application processing fee can be borne by the employee or candidate. Taking this into consideration in the context of the Osborne decision, cost alone is therefore unlikely to constitute sufficient objective justification for refusing to employ or support a candidate who requires an employment permit to work in Ireland, particularly if they have indicated that they are willing to cover the application processing fee.
A further consideration might be business continuity where the type of immigration permission held is time-limited in nature.
Non-EEA nationals who complete a third-level degree or higher in Ireland may be granted permission under the Third Level Graduate Programme, known as a Stamp 1G. During the Stamp 1G validity period, the holder may live and work in Ireland on a full-time basis in almost any occupation without an employment permit.
The Stamp 1G granted under the Third Level Graduate Programme is, however, time limited. A graduate with a Level 8 award (an Honours Bachelor’s degree) is generally granted permission for 12 months, and that permission cannot be renewed. A graduate with a Level 9 or Level 10 award, such as a master’s degree or higher qualification, is generally granted an initial 12-month permission, which may be renewed for a further 12 months subject to conditions. After that further 12-month period, no further renewal is possible under the programme. The reason being is because the intention of the Third Level Graduate Programme is to grant non-EEA nationals who have completed a third level course in Ireland right to work in Ireland so that they may find employment for which an employment permit will be granted – it is a means to keep highly educated talent in Ireland. However, if they fail to secure employment for which an employment permit may be granted, their options are limited and they may need to leave the State.
These time limits create a legitimate business continuity concern for employers in Ireland. Where a role is not eligible for an employment permit, or where the employer or candidate may not meet the relevant eligibility criteria, an employer may decide not to hire a Stamp 1G holder because it cannot reasonably assume that the individual will be able to remain in the role once the Stamp 1G expires. The employer may be concerned about high attrition and the operational burden of recruiting, onboarding and training a replacement if an employment permit cannot be obtained for the Stamp 1G holder. This concern may remain even if the employer is willing to support a renewal application for the permission or to move onto an employment permit, if no such route is available or cannot be obtained. The expiry of the permission can therefore cast significant doubt as to whether the candidate will have the requisite permission to live and work in Ireland beyond that date.
Framed in this way, it may be possible to justify business continuity as a legitimate aim even where it may be indirectly discriminatory on grounds of race or nationality. However, such a defence is not without limits. The employer would need to show that the concern is genuine and connected to the particular role and candidate, and that the decision is a proportionate means of protecting the business. A blanket policy of refusing all Stamp 1G holders would be much harder to justify than a case-by-case assessment of the role’s likely duration, the possibility of obtaining an employment permit or alternative permission, the candidate’s circumstances and the employer’s actual operational needs.
FAQ 2: Can an employer state that it will not provide support with an application for an employment permit for roles that do not meet the eligibility criteria for an employment permit?
This is likely to be objectively justifiable, but it should be framed carefully. The Irish employment permit system imposes specific eligibility criteria that are outside the employer’s control. The two most popular employment permits are the general employment permit and critical skills employment permit, each of which has its own eligibility criteria:
- General Employment Permits (GEP)
The minimum remuneration threshold for a GEP is €36,605 per annum (or €34,009 where the applicant is a recent graduate). Further the role must not appear on the Ineligible Occupations List and prior to submitting an application, the employer must satisfy a labour market needs test.
- Critical Skills Employment Permit (CSEP):
The minimum annual remuneration threshold for a CSEP is as follows:
- €40,904 per annum (or €36,848, where the applicant is a recent graduate – where the role is listed on the Critical Skills Occupations List. The applicant must also possess a relevant third level qualification.
- €68,911 per annum. The applicant must possess the relevant experience required for the role. The role cannot be listed on the Ineligible Occupations List, but it does not need to be listed on the Critical Skills Occupations List.
Separate to the specific criteria set for each employment permit, the company must be a bona-fide employer based and trading in Ireland, which is registered with the Revenue Commissioners of Ireland and, where applicable, the Companies Registration Office/Register of Friendly Societies.
The employer must also satisfy the 50:50 rule. This rule sets out that an employment permit will not be granted to an employer unless 50% or more of its workforce in Ireland are Irish or EEA/UK/Swiss nationals at the time of application. This restriction may be waived in limited cases.
Where a role does not meet the minimum annual remuneration threshold, the role is not eligible for an employment permit. Even if the minimum remuneration threshold is met, if the employer cannot meet this criteria, an employment permit cannot be obtained.
In these circumstances, an employer stating that it cannot apply for an employment permit is simply reflecting the constraints of the employment permit system.
FAQ 3: Can an employer state that it will not support an employee or candidate for an employment permit where eligibility is met?
Although there is no obligation to support a candidate or employee with an application for an employment permit, where they are eligible to apply, it’s unlikely that an employer will be in a position to refuse to do so for a specific role without good reason.
Whether an employer would have any joy in front of the WRC will depend on the reasons behind the policy. This will be a fact-sensitive question for the WRC.
For example, a refusal will be justified if the employer does not meet the 50:50 rule criteria. Comparatively, a refusal purely based on cost will, generally, not form the basis of a good objective justification defence. It’s unlikely that other economic factors that relate to cost (e.g the administrative burden of having to satisfy a labour market needs test or to comply with additional statutory requirements when employing an employment permit holder) would justify a policy that is indirectly discriminatory.
The WRC will apply a proportionality analysis when assessing objective justification. This requires a balancing of the employer’s legitimate business interests against the discriminatory impact of the policy on affected candidates. A blanket refusal to support candidates or employees with employment permit applications for eligible roles is more difficult to justify than a decision not to based on specific operational considerations.
FAQ 4: Can immigration compliance create discrimination risk?
A recent UK case illustrates the risk.
In Gharabli v Cedar Hope Care Services Ltd (Employment Tribunal, Case No. 6009247/2024), the tribunal found indirect race discrimination where overseas workers on Skilled Worker visas were paid £12.31 per hour while domestic workers performing the same support work were paid £10.50 per hour. The disparity arose because the Home Office set minimum salary thresholds for Skilled Worker visa holders, while the employer paid domestic workers the national minimum wage.
Mrs Gharabli was a domestic support worker who was later promoted to senior support worker. Following her promotion, she earned £12.50 per hour, only 19 pence more than overseas workers in junior roles. The employer argued that it had paid every worker the legally required or permitted rate and that the only alternative was not to hire overseas staff. The tribunal rejected that argument.
The tribunal accepted that compliance with immigration salary thresholds was capable of being a legitimate aim. It held, however, that compliance alone was insufficient to justify the pay disparity, particularly where the employer had not considered aligning domestic workers’ pay with the overseas rate or produced evidence showing why doing so would be financially prohibitive. The employer should have considered less discriminatory alternatives and evidenced the financial consequences of any such option.
Mrs Gharabli was awarded compensation totalling £14,174.30, comprising £10,000 for injury to feelings, £2,236.54 in financial losses and £1,937.76 in interest.
For Irish practitioners, the case is a useful cautionary illustration: immigration compliance obligations and anti-discrimination obligations must be considered together. An employer’s attempt to comply with one regime may inadvertently create liability under the other. This was a first-instance UK Employment Tribunal decision and is not binding in Ireland, but it is instructive and persuasive given the similarities between the UK and Irish equality frameworks.
Looking ahead
In the articles that follow, we will look at what happens when an employee’s right to work status surfaces more difficult questions, including what to do when an employee's right to work expires during employment and right to work implications of a business transfer or restructure.
