Employment law expert: Returning emigrant workers will be glad to see how well their rights are protected
Members of the Irish diaspora returning to the Irish workforce from non-EU countries may be pleasantly surprised by how well their employment rights are protected.
Naturally enough, Irish entrepreneurs returning to these shores will also need to familiarise themselves with Irish and EU employment laws. They may be returning to Ireland following decades of running a successful business in a non-EU jurisdiction.
Patrick Walshe, partner and employment law expert at law firm Philip Lee, here provides answers to most of the big employment questions that emigrants returning to Ireland, both employees and employers alike, will be asking themselves.
“Happily, because of the continually improving Irish economy, increasing numbers of the diaspora are returning to live and work in Ireland,” said Patrick Walshe. “Some may have been gone for handful of years; others may be returning after decades of working overseas, but they have one thing in common — they’re returning to a labour market, and a system of employment law, that may be unfamiliar to them.”
“A lot depends on where the emigrant is coming from,” said Patrick. “Members of the diaspora who left Ireland to work in other EU countries will probably be able to adapt more easily than those who have worked outside Europe since leaving Ireland. That’s for one very simple reason — the employment law systems in individual countries within the EU have a lot in common.
The European Union has always taken an activist approach to employment law — and many of our most important employment law rules came from Europe to begin with.
All of our equality law principles originated in Europe, for example, as did our rules governing Working Time and a variety of other laws and legal principles.”
“Particularly important is the fact that most EU countries embrace the concept of permanent employment — a hallmark of Irish employment law, and possibly the most important element of all.
"The way this manifests itself in Ireland is very simple — once you have 52 weeks of continuous employment, your dismissal is automatically deemed unfair by law and the employer must prove otherwise,” said Patrick.
“Putting it another way, Irish employment law places an onus upon the employer to justify why the relationship shouldn’t continue (as opposed to there being any duty on the employee to say why it should). That is a very significant and important principle in Irish employment law — and it is mirrored across Europe.”
“Employees returning from the United States will have to adjust to quite a different landscape. The USA does not have any comparable system of employment law to the Irish/European one. Perhaps the most fundamental point of distinction is the fact that in America, termination “at will” is both entirely legal and very common,” said Patrick. “What this means is that other than in cases of discrimination, an American employer is free to dismiss an employee irrespective of how long they have worked in the organisation.”
Patrick also points out that, in the USA, the employer is under no obligation to give reasons or justify their decision — they can simply make it.
An immigrant returning to Ireland from the USA, therefore, will be coming to a very different landscape.
In the US, there’s no concept of maternity leave — or any of the other benefits that exist as of right in Ireland (and in Europe).
“The same is true, to one extent or another, with the rest of the world — it’s quite rare for an employee to be able to be benefit from an extensive system of rights and safeguards,” he said.
“There are individual countries worldwide (Australia and New Zealand, by way of example) but by and large the working experience is more akin to the American one than the European,” Patrick adds.
“Regardless of where they are coming from, a returning Irish emigrant will benefit from a sophisticated set of rights enshrined both in Acts of the Oireachtas and elsewhere. It is no exaggeration to say that every key aspect of the employment relationship (from hiring to firing, not to mention everything in between) is regulated,” Patrick said.
“An employer can’t discriminate in hiring, can’t force employees to work indefinite hours, must allow employees to take maternity, paternity other special leaves and must always act objectively fairly when dealing with the workforce — from disciplining them to dismissing them.
In addition to this, an employee who has a grievance with their employer — ranging from being paid less than the minimum wage to discrimination on grounds of gender — can seek redress in the Workplace Relations Commission. That body will generally always uphold a legitimate claim; another powerful tool in an employee’s arsenal.
The European Union is a much-maligned body in 2019. The organisation has always been the subject of criticism, but it’s become especially trenchant in the last few years.
"Perhaps some of that is deserved, but one point is worth considering for any Irish, or European, worker. If the EU didn’t exist, it’s most unlikely that this country — or any EU country — would have such a comprehensive system of worker’s rights.”
