Poliane Fernandes Lima v Elland Distributors Limited t/a Born Clothing

The Workplace Relations Commission (the “WRC”) has awarded €25,000 to Poliane Fernandes Lima (the “Complainant”) and has found that she was unfairly dismissed by Elland Distributors Limited t/a Born Clothing (the “Respondent”). The Complainant’s employment was terminated as a result of the expiry of her immigration permission.

In November 2023 the Complainant applied to renew her immigration permission as it was due to expire two months later on 23 January 2024. The Respondent sought legal advice and proceeded to terminate the Complainant’s employment on 25 January 2024. The Complainant’s permission was renewed on 28 January 2024.

The Adjudicator Officer, Niamh O’Carroll highlighted that the legal advice obtained by the Respondent did not inform him of the eight-week grace period permitted by the Department of Justice. If an employee’s Irish Residence Permit (“IRP”) card has expired and they are unable to obtain a valid registration card by the expiry date of their current IRP card, they are still legally permitted to remain in the State on the existing conditions of their current IRP card for a maximum of 8 weeks. This 8-week provision is subject to the employee providing proof that they have applied to renew their immigration permission prior to their current IRP card expiring.

The Adjudication Officer found that the Complainant met the Department of Justice’s criteria for a grace period as she had applied to renew her immigration permission well in advance of its expiry and had provided the Respondent with proof of same. The Adjudication Officer was satisfied that the Respondent, in the absence of any procedures whatsoever and acting on incorrect information, dismissed the Complainant and that that dismissal was unfair.

What does this mean for employers?

This case is an important reminder that employers should seek specialist advice before terminating an individual’s employment on the basis that they no longer have the right to work in Ireland.

Eversheds Sutherland recognizes the ever-increasing need for corporate immigration advice. Our team benefits from cross-qualified employment and immigration solicitors who can provide bespoke client training on right to work compliance in Ireland.