Monday, August 19, 2019
As published in the Sunday Business Post, Sunday 18th August 2019 The continually improving Irish economy has seen increasing numbers of the Irish diaspora returning to live and work in Ireland. Some may have been gone for a handful of years. Others may be returning after decades of working overseas.
But they have one thing in common. They are returning to a labour market, and a system of employment law, that may be unfamiliar to them.
So what can a returning emigrant expect if they haven’t worked here recently – or ever? What do they need to know about the employment law regime in Ireland?
A lot depends on where the emigrant is coming from. 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. There is one very simple reason for this. The employment law systems in individual countries within the EU have a lot in common.
The EU takes an activist approach to employment law. 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. This is a hallmark of Irish employment law and possibly the most important element of all. Once you have 52 weeks of continuous employment, your dismissal is automatically deemed unfair by law and the employer must prove otherwise.
Putting it another way, Irish employment law places an onus upon the employer to justify why the relationship shouldn’t continue. This is 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, however, 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.
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. The employer is under no obligation to give reasons or justify their decision.
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 is quite rare for an employee to be able to be benefit from an extensive system of rights and safeguards.
Countries like Australia and New Zealand do differ in this regard, but by and large the working experience is more akin to the American one than the European.
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.
An employer can’t discriminate in hiring They can’t force employees to work indefinite hours. They must allow employees to take maternity, paternity other special leaves and must always act objectively fairly when dealing with the workforce.
An employee who has a grievance with their employer can seek redress in the Workplace Relations Commission. That body will generally always uphold a legitimate claim. This is another powerful tool in an employee’s arsenal.