Maternity Benefit denied to Foreign National working without a valid Employment Permit

Judges gavel and legal books

by Maeve Griffin, Solicitor at Fieldfisher

A recent Supreme Court decision (Sobhy-v- The Chief Appeals Officer &Ors[2021] IESC 81) examined whether a worker who does not have a valid employment permit or permission to remain in the State is entitled to Maternity Benefit despite having made the relevant statutory contributions. The above decision overturned an earlier High Court ruling which had previously found in favour of the worker who sought maternity benefits for a six month period in 2019.

Ms Sharda Sobhy was a national of Mauritius who arrived in Ireland in 2008. She resided and worked in the State under a student work visa, which expired in 2012 and she remained in the State without permission and worked without a permit thereafter (until her status was eventually regularised in 2019).

It was not in dispute that Ms Sobhy was employed under a contract of employment and made the necessary statutory contributions normally required to qualify for Maternity Benefit.The question for the Supreme Court was whether those contributions were valid in circumstances where Ms Sobhy did not have permission to work in the State. The Supreme Court referred to an earlier decision which held that “rights cannot flow from contracts of employment made without a necessary work permit or by a person unlawfully present in the State”. Ultimately, the Supreme Court concluded that Ms Sobhy’s contract of employment was illegal and the State is not bound to accept an unlawful employment relationship for the purpose of creating an entitlement to State paid Maternity Benefit.

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This decision could have “potentially far-reaching consequences as to the entitlement of undocumented workers to social welfare benefits and we will likely need further legislative clarity in this area. However, it does not mean that an employer can rely on the illegality of a contract of employment to defend any claims for pay, holidays or other statutory entitlements. Otherwise, It could result in an “unjustifiable harshness” the Supreme Court noted. The decision also emphasised that it is a criminal offence for employers to employ workers without a valid work permit.

About the author

Maeve trained in a specialist employment law practice and has extensive experience advising clients on all aspects of the employment relationship (both contentious and non-contentious).

Maeve advises both employers and employees on all aspects of the employment relationship including contracts and handbooks, internal disciplinary and grievances, restructuring, data protection and termination of employment. Maeve has a particular interest in gender equality, age discrimination and sexual harassment at work.

Maeve conducts her own advocacy before the Workplace Relations Commission and the Labour Court. Maeve also has experience running litigation in the Superior Courts including injunctions, breach of contracts and personal injuries arising from accidents at work, bullying and sexual harassment.

Maeve holds an Advanced Diploma in Employment Law from the Honourable Society of King’s Inns and a Bachelor Degree in Civil Law from NUIG.