Requirement for Foreign Employees to Work
Any EEA (i.e. the EU Member States plus Norway, Iceland and Liechtenstein), Swiss or UK national does not require an employment permit to work in Ireland.
For non-EEA nationals (other than Swiss and UK nationals), different types of employment permits are available in Ireland. The main types of employment permit are: General Employment Permit, Critical Skills Employment Permit and Intra-Company Transfer Employment Permit. The relevant permit required in each case will depend on the circumstances.
Some non-EEA nationals will also require a visa to enter Ireland, in addition to an employment permit, depending on their nationality.
Fines and penalties may be imposed where an employer employs a non-EEA national without an employment permit.
Does a Foreign Employer need to Establish or Work through a Local Entity to Hire an Employee?
In general, no, a foreign employer is not required to establish, or work through, a local entity in order to hire an employee in Ireland. However, a local entity (or branch of a foreign entity) must register with the Companies Registration Office in Ireland and the Revenue Commissioners of Ireland in order to hire a non-EEA national on an employment permit, as above.
Limitations on Background Checks
In Ireland, there is a general prohibition on employers vetting individuals for criminal convictions and offences except for very limited activities and then criminal checks may only be carried out by An Garda Síochána, which is the Irish police force (“AGS”). Irish law only permits employers to seek criminal personal data by making a vetting request to the National Vetting Bureau in the AGS where the prospective employees will work with children or vulnerable adults or for the Irish State. The only other lawful route available to organisations to process criminal data is to request a completed self-disclosure form from the data subject for relevant criminal history. Section 55 of the Irish Data Protection Act 2018 (“DPA”) permits an employer to process criminal data where an individual self-discloses and gives explicit consent to the processing of that criminal data. However, obtaining valid consent is problematic in the employment context and safeguards to prevent the employee from disclosing any convictions regarded as “spent” under the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 would be necessary.
It is not feasible to carry out other forms of background checks such as credit checks because this information is not publicly available on any database or by any state body. Similarly, bankruptcy information is also not made publicly available on any database and would require a “hand search” of hardcopy documents at the relevant office of the Irish High Court.
Any social media searches must be necessary and relevant to the performance of the job for privacy law reasons. As the carrying out of any background checks involves the processing of personal data, the employee has a right to be informed of the specific checks under data protection law. The privacy notice the employer provided to employees would need to cover the purposes and legal basis the employer relies on to carry out any background checks.
Restrictions on Application/Interview Questions
The Employment Equality Acts 1998 – 2021 (the “Employment Equality Acts”) prohibit employers in Ireland from discriminating against an employee or prospective employee in relation to access to employment, conditions of employment, training or experience for or in relation to employment, promotion or re-grading or classification of posts.
Employers must ensure that recruitment processes, job advertisements, interview questions, job application forms, etc. are free from discrimination on any of the nine protected grounds/characteristics under the Employment Equality Acts (see V. Anti-discrimination Laws). An employer has a statutory obligation to reasonably accommodate an employee or prospective employee with a disability.