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.
The statutory framework
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 seems to give employers a straightforward defence: if an employee does not have valid immigration permission to work, keeping them employed would mean breaking a statutory restriction, and the dismissal should not be unfair. The Employment Permits Act 2024 as amended makes it an offence for both an employer and a foreign national to be in or allow employment in the State without a valid employment permit or permission from the Department of Justice, Home Affairs and Migration, with penalties on conviction on indictment of up to €250,000 and/or ten years' imprisonment.
But as the case law shows, section 6(4)(d) is not a free pass. It does not relieve the employer of the obligation to act reasonably and follow fair procedures before ending the employment. Where the employer misunderstands the immigration rules or jumps to conclusions without proper investigation, the "helicopter parent", the Unfair Dismissal Act, will intervene.
Fair procedures
The WRC's Ten-Year Anniversary Case Report (October 2025) emphasises that fair procedures must remain at the heart of WRC decision-making, noting the increased emphasis on fair procedures since the Supreme Court's landmark decision in Zalewski.
Section 6(7) of the Unfair Dismissals Act 1977 requires that, in assessing whether a dismissal was unfair, regard may be had to the reasonableness of the employer's conduct and to the extent of the employer's compliance with applicable procedures and codes of practice. This provision applies with equal force where the ground of dismissal is a purported statutory contravention under section 6(4)(d). Before terminating an employee’s employment over a suspected right to work issue, an employer should invite the employee to an investigation meeting, put the facts to the employee and give the employee a chance to respond before issuing an outcome.
Poliane Fernandes Lima v Elland Distributors Limited t/a Born Clothing (ADJ-00049872)
The WRC decision in the case of Poliane Fernandes Lima case 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, which was due to expire on 23 January 2024. The Respondent sought legal advice and, on the basis of that advice, terminated her employment on 25 January 2024, just two days after her permission expired. Three days later, on 28 January 2024, 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 8 weeks at the time the Complainant’s employment was terminated), provided they applied before the expiry date and submitted 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.
This decision highlights challenges that can arise when employment law and immigration rules collide. On one hand, an employer cannot employ an individual without a valid permission to work or else it will be committing a criminal offence. On the other, it cannot use the fear of committing a criminal offence to avoid fair procedures under employment law and must carry out all necessary investigations to make sure it has a correct understanding of the relevant immigration and employment rules. Ending employment too soon, without fair procedures and accurate information will not shield the employer from a successful unfair dismissal claim even where its intention was to comply with immigration laws.
An Employee v An Employer UD1676/2011
The tension between immigration rules and unfair dismissal protections did not start with the Poliane case. The Employment Appeals Tribunal (EAT) grappled with these issues many years ago in An Employee v An Employer.
In this case, the employer terminated a security guard on a student visa after his visa expired. The Garda National Immigration Bureau (GNIB) had told the employee in December 2010 that a new immigration policy was coming in on 1 January 2011 and that he should wait for the changes. Through no fault of his own, his visa did not come through until 23 March 2011. The employer terminated his employment by letter on 6 April 2011, just before receiving a copy of the renewed visa on 7 April.
The EAT found the dismissal to be unfair. However, it also took into account the employee's contribution to the situation, noting that the claimant had a duty to keep his employer updated and informed. The Tribunal applied the "just and equitable" standard under section 7 of the Unfair Dismissals Acts and awarded €2,000 in compensation.
This decision is instructive for two reasons. First, it confirms that employers must make sure visa and work permit matters are in order before acting too quickly. Second, it recognises that employees also have a responsibility to keep their employer updated on renewal applications – something that may reduce compensation where there has been contributory fault.
Lessons for employers
The Poliane Fernandes Lima decision, read alongside the earlier EAT case law, yields several practical lessons for employers navigating the employment and immigration intersection:
- Understand the grace period. Where an employee has applied to renew their immigration permission before it expires, and submitted all the required documentation with the application, the Department of Justice, Home Affairs and Migration’s grace period (currently 12 weeks) means the employee can remain in the State on their existing conditions while the renewal is processed. Employers must factor this in before concluding that an employee does not have permission to work.
- Seek legal advice. Not all applications are afforded the grace period. Full legal advice should be sought on a case-by-case basis in situations where an employee’s right to work is in doubt.
- Follow fair procedures. An employee may appear not to have the right to work, but this doesn’t always mean that they actually don’t have permission to work. A prompt, thorough and fair investigation into the employee’s immigration status is therefore needed. This should involve a meeting with the employee. The employee should be encouraged to provide information and documentation that would be helpful in determining their immigration status.
- Suspension? Suspending the employee pending the investigation may seem like a good option to buy time, but it won’t necessarily help reduce the legal risk from an immigration perspective. This is because Irish immigration law looks at whether an individual is employed. They would still be employed if they are suspended, and regardless of whether suspension is paid or unpaid.
- Communicate with the employee. Employers should ask the employee for updates on the status of any pending renewal application, and employees should keep their employer informed. A breakdown in communication can be a factor in reducing compensation, but it will not excuse a failure to follow fair procedures on the employer's part.
- Do not act precipitously. The temptation to terminate immediately upon expiry of an immigration permission is understandable, given the criminal penalties for employing someone without valid permission. But ending employment too soon based on a misunderstanding of the rules will not shield the employer from a successful unfair dismissal claim.
Conclusion
We recommend that full legal advice is sought on a case-by-case basis in situations where an employee’s right to work is in doubt. This is because of the risk of WRC claims, and also because an employee who seemingly does not have the right to work may, in fact, actually have it. Compliance with immigration law alone will not shield an employer from a successful unfair dismissal. Employers should apply their processes consistently and fairly, and should not act suddenly based on assumptions about what immigration law requires.
