UCD SLS Clinic Handbook by UCD Student Legal Service

STUDENT LEGAL SERVICE

20 14

clinic handbook 8 th

session

UCD student legal service

clinic handbook 2014 8th

session

ucd student legal service, sutherland school of law, belfield, dublin 4.

acknowledgements Editors-in-chief: Michael Sinnott and Hugh O’Donnell. Editors: Ceithrean Murray, Amy Eustace, Laura Scanlan, and Ruth McGuinness. Committee 8th Session: Daniel Griffin, Hugh O’Donnell, Michael Sinnott, Clare Parsons, Conall Devlin, Emma Lynam, Oisín Sudway, Carl Murray, Barry O’Fiacháin, Andrew Vickers, Samantha O’Brien O’Reilly, Clare Mckeon, and Louise Murray. Contributors: Carl Murray, Mark Durcan, Daniel Griffin, Emma Lynam, Roryann Sweeney, Erica Heslin, Jennifer O’Brien, Hugh O’Donnell, Ella Adler, Michael Sinnott, Nessa Flynn, Lauren Dooley, Niamh Fitzgerald, Emily McMorrow, Shauna Joyce, Aidan Ward, Samantha O’Brien O’Reilly, Lalina Zaffar, Lorna Verdon, Simon Collis, Grace Bolger, Ruth McGuinness, Eman Awan, Thomas Kelly, Sophie MacCionnaith, Brian Kelleher, Eimear Delargy, Lauren Flanagan, Laura Byrne, Molly O’Casey, Kyle Moran, and Susanna Morgan Designer: Georgia Sinnott. Special Thanks: Ms Justice Mary Laffoy, Professor Colin Scott, Dr Liam Thornton,

Dr Kevin Costello, Ms Jane McGowan, and Grace Duffy.

disclaimer UCD Student Legal Service assumes no responsibility of any kind for the information contained herein or for any reliance that the recipient or any other party may place on any information contained herein and hereby disclaims all liability in respect of such information. The information contained herein is not intended to convey legal advice and should not be construed as or used as a substitute for such advice. It is written for general informational purposes and reading it does not create a lawyer-client relationship. While every effort is taken to ensure that the information provided is correct and accurate, it should not relied upon as a comprehensive or current statement of the law in respect of any matter and appropriate advice should be sought before taking or refraining from taking any action in reliance on any information contained herein. Neither UCD Student Legal Service nor any of its officers, members or contributors, either individually or collectively, make(s) any warranties, representations or undertakings relating to any of the content of such information (including, without limitation, as to the quality, accuracy, completeness or fitness for any particular purpose of such information) and no liability is accepted for any injury and/or damage to persons or property as a result of any reliance on any such information.

contents Foreword

(ii)

Introduction

(i)

chapter 1 legal skills and ethics Legal Advice & Legal Information: The Difference. - Daniel Griffin

Clinic Basics - Carl Murray

Confidentiality - Mark Durcan

chapter 2 landlord and tenant law The Resolution of Disputes Between a Landlord and Tenant - Emma Lynam

Relevant Considerations for a Tenant when Entering a Lease - Roryann Sweeney & Erica Heslin

Tenants’ Rights & Obligations - Jennifer O’Brien & Ella Adler

Lease/License Distinction - Hugh O’Donnell

Accommodation: Maintenance & Repairs - Michael Sinnott

Termination of a Lease & Notice to Quit - Nessa Flynn & Lauren Dooley

Recovery of Deposits - Niamh Fitzgerald

Sample Clinic Questions - Emily McMorrow

Subletting/Assignment Options Available to Tenants Under a Typical Lease Agreement - Shauna Joyce

chapter 3 consumer law The Stages of a Consumer Complaint - Aidan Ward

Statutory Entitlements under the Sale of Goods and Supply of Services Act 1980 - Samantha O’Brien O’Reilly

Holidays & Flights – the Consumer Issues - Lalina Zaffar

Insurance Policies & Making a Claim - Lorna Verdon

Misleading Advertising - Simon Collis

Small Claims Court Procedure - Grace Bolger

chapter 4 students and the justice system The Remit of the SLS - Ruth McGuinness

Public Order Offences - Ruth McGuinness and Eman Awan

Garda Powers of Stop & Search - Thomas Kelly

Rights in Custody & Detention - Sophie MacCionnaith

chapter 5 employment law Employment: Contracts, Wages and Deductions - Brian Kelleher

Working Time, Holidays and Working Conditions - Eimear Delargy

Resignation, Continuance of a Fixed Term Contract and Minimum Notice Periods - Lauren Flanagan

Work Permits - Laura Byrne

Health and Safety in the Work Place - Laura Byrne

National Employment Rights Authority - Molly O’Casey

The Rights Commissioner Service - Molly O’Casey

The Equality Tribunal - Molly O’Casey

The Employment Appeals Tribunal - Kyle Moran

Rights in Relation to Disciplinary Proceedings - Susanna Morgan

(ii)

foreword To put this very useful book into perspective, it is necessary to understand the nature and function of the Student Legal Service (SLS) in University College Dublin. SLS is a voluntary, student run organisation. Its function is to enable law students of the University use their knowledge to provide legal information to the general body of students of the University. Students are most likely to encounter the application of civil law in three capacities: as residential tenants; as employees; and as consumers. It is undoubtedly the case that the law governing the relationship of a residential tenant and his or her landlord is extremely complicated. The principal primary legislation, the Residential Tenancies Act 2004, has no less than 202 sections and a schedule and it runs to no less than 125 pages in A4 format. That is just the starting point in ascertaining a residential tenant’s rights and obligations. Secondary legislation, in the form of the Housing (Standards for Rented Houses) Regulations 2008 and the amending Regulations of 2009, set minimum standards for repair and maintenance of dwellings which must be complied with by landlords. However, the complexity of the residential component of landlord and tenant law is probably surpassed by the complexity of the law governing the relationship of employer and employee, the sources of which are national legislation, European Union legislation, nationally transposed European Union legislation, as well as common law principles. The law governing consumer protection is also very complex, bearing in mind that the concept of ‘consumer’ goes way beyond the person who is buying ‘a ball of malt’ in his local ‘pub’. In the light of the foregoing, the publication of the Clinic Handbook is to be welcomed. It provides guidance for student members of the SLS in relation to very complex areas of law, but it focuses on the likely needs of students who consult the SLS. Its availability will ensure that there is consistency in the legal information provided by SLS and that it is up-to-date information. One aspect of the information contained in the Clinic Handbook which I think is particularly important is that it points the reader towards the body or forum which may give further assistance or advice to, or which may resolve the problem of, the student who consults the SLS. Just to take an example of a situation which I suspect occurs frequently, that of a student who is seeking to recover a deposit paid to a landlord, it is suggested in the Clinic Handbook that advice might be sought from Threshold or an application might be made to the Private Residential Tenancies Board. While the main objective of the Clinic Handbook is to provide a clear and accurate summary of the law and the relevant legal principles in areas of civil law in which a student is likely to engage, its objective is also to provide guidance for the members of the SLS as to the proper legal and ethical approach to addressing the issues and problems which they are likely to encounter as members. The importance of that underlying theme cannot be emphasised too much. Finally, I commend the officers and members of the SLS, not only for their prudence in producing the Clinic Handbook, but also for the time and effort which they have put into producing a guiding document which will be of invaluable benefit to the members of the SLS and to students who seek their assistance.

Ms. Justice Mary Laffoy, Supreme Court, 26th March, 2014.

(i)

introduction The aim of the Student Legal Service is to help fellow students by providing them with accurate legal information in a clear and understandable manner. To do this, we need to provide our volunteers with the necessary skills and information. We are delighted this year to have produced the SLS Clinic Handbook to assist both our clinic volunteers and our clients in ensuring that members of the UCD community are informed of their legal rights. This publication would not have been possible without the dedicated work of our editors: Ruth McGuinness, Ceithrean Murray, Amy Eustace, and Laura Scanlan. Similar appreciation must be extended to our contributors who crafted the individual sections which make up the Clinic Handbook. On behalf of the society, we wish to thank every one of you for this great achievement. The foreword by Ms Justice Mary Laffoy acts as a fantastic endorsement of the research and analysis found in this publication. We are truly honoured by her support. Without the assistance from our academic supervisors: Professor Colin Scott, Dr Liam Thornton, Dr Kevin Costello, and Ms Jane McGowan, we could not have produced the publication before you. Their support is continually appreciated. We hope the Clinic Handbook will find its home in the heart of the SLS Clinics, and will enable future Clinic Co-ordinators and Volunteers to continue the dedicated work of their 8th session counterparts. We greatly look forward to reading future editions.

Daniel Griffin Chairperson.

Michael Sinnott Legal Researcher.

UCD Student Legal Service, 8th Session, Sutherland School of Law, Belfield, Dublin 4.

Hugh Oâ&#x20AC;&#x2122;Donnell, Legal Analysis Officer.

chapter 1 legal skills and ethics legal advice and legal information: the difference. Daniel Griffin As a clinic volunteer, perhaps the most fundamental piece of information volunteers must impart to those attending clinics is that the Student Legal Service is only able to provide legal information. We cannot offer legal advice. This distinction between legal information and legal advice may become blurred at times. However, the importance of this distinction is paramount. Only qualified solicitors and barristers are entitled to dispense legal advice. Legal information is supposed to be general in nature and not confined to a specific set of facts arising. By contrast, legal advice is where a qualified solicitor or barrister applies the law to a specific set of facts and often extends to recommending a specific course of action. When you feel like youâ&#x20AC;&#x2122;re crossing such a threshold, stop and go no further than this. A common example of where we provide legal information to a client is where it concerns a landlord and tenant relationship. By simply informing a client of their rights as a tenant including the procedures involved with bodies such as the Private Residential Tenancies Board, we act to serve the client without breaching the boundaries of legal advice and without recommending any specific course of action. If in doubt speak with your clinic coordinator or the SLS Chairperson.

clinic basics Carl Murray The core principle underlying positive volunteer-client relations is communication. Without good communication the volunteer-client relationship cannot develop properly and will prove to be ineffective. Clinic volunteers should always ask themselves the following four questions when dealing with clients in order to ensure effective communication and a positive experience for all involved.

1. who is the client? When working as a volunteer at the clinic, it is not always clear who the client actually is. People are often too shy to attend clinics themselves and send somebody else in their place. Obviously, this is not always the case but it is important nonetheless to identify from the outset whether or not the person you are dealing with is in fact the client. This is important for a number of reasons. First, from a confidentiality and ethics point of view, it is necessary to know to whom exactly you owe a duty. Second, clients need to sign liability waivers with regard to any legal information received for the purposes of insurance so we can keep the clinics up and running. In this regard, it is of paramount importance that the person actually in receipt of the legal information is the person who signs the waiver in front of you. Identifying the client is also important where a client has, for example, a disability which may influence the information given by the volunteer to the client. In the same way, a client may also be of a certain age, gender, religion or background which may similarly influence the information given. Volunteers should also be sensitive to any anxiety or any other difficulty suffered by those who attend the clinics. Volunteers should engage with clients in any of the above situations in the same way they would with

2 | chapter 1 legal skills and ethics

any client. Volunteers should, however, take any such difficulty or background circumstance into account both when dealing with and providing legal information to the client.

2. what is the nature of the matter? Before giving any legal information to clinic attendees, it is imperative that volunteers discover the nature of the query. The Student Legal Service is eager to help with any legal queries insofar as possible. There are, however, some matters that are best dealt with by a qualified solicitor. These include but are not limited to any queries of a criminal nature including sexual offences, matters with large financial ramifications, and any family law matters. More often than not, volunteers will be able to provide clients with legal information but if in doubt, consult the clinic coordinator who will be on hand at every clinic. The ultimate decision as to whether or not you as a volunteer can provide legal information on a certain issue will depend on the judgment of the clinic coordinator.

3. what am i saying and how am i saying it? Once the nature of the query has been determined, clinic volunteers can then exercise their judgment and provide the client with legal information in relation to their query. The golden rule in providing legal information is if you are unsure about a particular query, do not give any legal information to the client. It is perfectly okay to tell the client that you will need to do some research and will get back to them in relation to their query. In fact, this is what is normally required with the vast majority of client queries in order to give complete and accurate legal information. When you are providing a client with legal information it is important to remember your audience. The client is probably not au fait with legal terminology or law generally so it may be helpful to amend what you are saying to make it accessible and applicable to your client. Drop the legalese and explain things in such a way that it will be easily understood by your client. Be prepared to explain any legal principles and concepts to your client in a brief and straightforward manner.

4. what are my obligations to the client? Confidentiality, while covered more thoroughly under the Confidentiality section of this Handbook, is worth mentioning here as it forms the cornerstone of clinic relations. Ethical obligations, in particular confidentiality, exist to afford a level of protection to clients but also to foster a relationship of trust between volunteers and clients. Without the trust of clients, legal information clinics cannot operate effectively. It is therefore of paramount importance that volunteers maintain client confidentiality and respect their right to privacy in all clinic matters in order to ensure the proper and effective running of the clinics.

5. clinic techniques In addition to the first 4 questions, there are a number of other considerations to keep in mind when volunteering at legal information clinics. When meeting clients for the first time, it is important to greet the client professionally. Stand, shake their hand and exchange names with your client upon their arrival. This may seem rather formal but it is imperative to put your client at ease as soon as they arrive at the clinic. Be sure to address your client by their correct name or title, particularly if they are older, i.e. â&#x20AC;&#x153;Mr. Murphyâ&#x20AC;?. At times, volunteers may encounter difficulties when dealing with clients. For example, they may not provide all the necessary information to give correct and accurate legal information. Remain patient and ask open-ended questions. Open-ended questions encourage the client to speak and are less likely to evoke one word answers. It is also important to keep records of what went on during the consultation both for your own records and in the event that a client disputes anything said during the consultation. However, make sure that, despite your note taking, the client can see they have your full attention. Once the consultation is nearing an end, it is important to give the client an estimated timeline of what is likely to occur i.e. when the next meeting will take place.

confidentiality | 3

6. conclusion

If as a volunteer you ask yourself these questions and bear these considerations in mind, you should be fully equipped to deal with any queries that might arise in the context of the SLS Legal Information Clinics. If ever in doubt, ask a clinic coordinator. They will be happy to assist you in any way.

confidentiality Mark Durcan

1. what is confidentiality? Confidentiality refers to the ethical duty not to disclose information learned from clients to any other person without the consent of the client in question. Confidentiality forms the core of the fiduciary relationship between legal practitioner and client and, in the same way, the relationship between volunteers and clinic attendees. In order to maintain this relationship, volunteers must ensure that they respect the privacy of the client at all times and must not disclose personal information to their friends, family, or even co-volunteers. It is vital to note that the duty of confidentiality is not limited in time. It does not cease upon the resolution of the client’s matter, nor upon the conclusion of a volunteer’s involvement with the SLS.

2. why must volunteers respect this principle? Confidentiality serves the interest of the administration of justice and more importantly, the interest of the client. The primary rationale underlying the duty of confidentiality is that without it, there is no trust. An assurance of confidentiality serves the purpose of encouraging the client to speak openly to the volunteer about their legal issue, thus enabling the volunteer to carry out their duty effectively with all the relevant information. Furthermore, the disclosure of confidential information may cause irreversible damage to a client or another, be it their good name and/or their career prospects. In addition to the potential harm caused to a client by a volunteer breaching this duty, the reputation of the SLS would also suffer irreparable damage. UCD SLS seeks to maintain a professional standard and such a breach would completely undermine the organisation.

3. what is confidential information? Confidential information may include the client’s personal details, namely their address, contact details, information about their family, bank details, or any information relating to their query. Confidential information does not include information that was already publicly available. As a general rule, volunteers should assume that all information disclosed by the client is confidential and should consult a clinic coordinator if in doubt. Also beware the hypothetical, simply omitting a client’s name is not enough as a case may still be recognisable from the barest of facts.

4. are there any exceptions? There are some instances where a breach of confidentiality may be justified. Disclosure of information to a third party will be justified with the client’s express consent. In this instance, the consent of the client in writing is preferable and be sure to make a note of the time, date and nature (i.e. in writing or verbal) of the client’s consent in your records. It is important to remember that the SLS Legal Information Clinics only provide legal information and do not offer legal advice. Clients should be made aware that any exchange of information, including information that a client may share with a volunteer, is not covered by any form of lawyer-client privilege.

4 | chapter 1 legal skills and ethics

5. guidelines The SLS Code of Conduct outlines a number of rules that the volunteer must adhere to in relation to this policy of confidentiality: a) During sessions, members should only explore and collect information which is relevant to the case. b) Volunteers should never discuss a client’s information with other students/friends, in places where it is likely to be overheard or on social networks. Nothing learned during the course of dealing with a client (including the fact that an enquiry has been made) should be passed to anyone outside the clinic without the client’s express permission. You should always get confirmation from a clinic coordinator before you contact a third party (e.g. FLAC). c) Circumstances may arise in which a breach of confidentiality will be authorised. Only a clinic coordinator is authorised to make a decision to breach confidentiality. d) Clinic records should be dealt with in a way that protects and respects a client’s privacy. If a client asks to see their clinic record, you should consult a clinic coordinator. e) Where it is appropriate to do so members should inform clients about legal limits on confidentiality. f ) The details of a client’s case must not be revealed or the fact that you have been consulted by a client by e.g. leaving a telephone message for a client (unless the client has authorised this). Similar care must also be exercised if using e-mail and clients should only be contacted by email using the UCD address they provide. If, as a volunteer, you understand the duty of confidentiality and the obligation it places upon you, as well as following the guidelines laid down by SLS Code of Conduct, you should be well-equipped to carry out your work as a volunteer ethically and conscientiously at the SLS Legal Information Clinics.

chapter 2 landlord and tenant law the resolution of disputes between a landlord and tenant Emma Lynam

1. background Disputes between landlords and tenants account for more than 60% of the legal issues referred to the SLS Information Clinics. Disputes have a propensity to escalate quickly and as such every appropriate effort should be made to resolve the issue in order to prevent further escalation. Disputes usually arise in two instances: in the context of a lease agreement; or it will arise in the context of a licence agreement.

2. stages of dispute resolution 2.1 Discussion The objective of the provision of legal information is to resolve a disagreement without further damaging the relationship between the parties. It is advisable that the clinic volunteer suggest to the client that he or she engage with the landlord in an effort to reach some kind of agreement, before attempting to avail of existing statutory methods of recourse. There is no legal representation available to an individual who brings a case to the PRTB, so settlement at the earliest possible stage is desirable. For example, if a tenant wants to terminate the tenancy before the expiration of the lease (without having a right to do so), the first and most useful option is for the client to sit down with his landlord and try to reach a compromise whereby the landlord will agree to the early termination of the lease, e.g. on the condition that he or she find a tenant to take his or her place. This type of arrangement has been successful in the past. It is important to note that the lease itself may in fact contain a provision which stipulates the course of action to be followed in the event of a dispute arising between the parties. The lease should, therefore, be consulted before any legal information is provided.

2.2 The PRTB If an agreement cannot be reached between the parties, another avenue of recourse may be the Private Residential Tenancies Board (the PRTB). The Residential Tenancies Act 2004 (the 2004 Act) established the PRTB, which serves a dual purpose. First, it operates a system of national tenancy registration. Section 134 of the 2004 Act requires landlords to register the tenancy of a dwelling with the PRTB, typically within one month of the commencement of the tenancy,1 failure to do can result in the landlord being prosecuted. Secondly, the PRTB resolves disputes between landlords and tenants by means of mediation and adjudication (paper and oral based).2 A detailed and helpful chart of the procedure is available is online.3 The PRTB does not have jurisdiction to hear disputes where: a) Disputes arise between tenants; b) A dwelling is let under a licence agreement or ‘Rent a Room Scheme;’ c) Disputes are ongoing before the Courts; d) Disputes are related to holiday lettings; and e) Disputes relate to social housing.4

3 4 1 2

Residential Tenancies Act 2004, s 134(2). Residential Tenancies Act 2004, s 75(1). Stage of a Dispute Resolution pdf, available at http://www.prtb.ie/dispute-resolution/disputes. The Private Residential Tenancies Board, ‘Jurisdiction’ (www.prtb.ie) http://www.prtb.ie/dispute-resolution/ disputes/jurisdiction> accessed 16 January 2014.

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2.3 Mediation Mediation is a process whereby a mediator will encourage and facilitate the parties to reach a common agreement on the matter under dispute.5 The mediator has no decision making authority, only an advisory role. Both parties must consent to mediation before the process may take place.6 Telephone mediation is a convenient option and one that avoids contact with the other party to the dispute. The mediator will assist the parties in reaching a mutually acceptable agreement. The process is less formal, less adversarial, and requires far less paperwork.

2.4 Adjudication Adjudication may also be employed to resolve the dispute. An adjudicator may adopt a facilitative role and encourage the parties to reach an agreement.7 Alternatively, he/she may make a determination based on the evidence.8 Any such evidence must be submitted ahead of the hearing.9 The parties will be given a ‘21 day cooling off period’ where they may decide to withdraw from the agreement reached.10 If one party withdraws, the adjudicator will then make a determination.11 This determination may be appealed.12 Importantly, if neither party retracts from the agreement during the cooling off period, the adjudicator’s determination becomes a binding determination which may not be appealed to a Tribunal.13 2.5 Tribunal A Tribunal is typically a last resort. Where the parties have failed to reach an agreement at mediation or they wish to appeal the decision of the adjudicator, they may refer their case to a Tribunal.14 The Tribunal is a more formal process. It consists of a three person panel and hearings are open to the public. Clinic volunteers should remind clients to keep documents relevant to their tenancy in a safe place. Frequently the PRTB will require proof of rent paid or proof of deposits. Landlords may be required to submit evidence of rent arrears or unpaid utility bills. The PRTB has provided a useful ‘Guide to Evidence’ on its website.15 Any attempts by the landlord to increase the rent must comply with the 2004 Act. A landlord may not increase rent within 12 months of the commencement of the tenancy.16 The revised rent must not exceed market rent.17 The tenant must be informed, in writing, 28 days before the increase is to take effect.18 In situations of deposit retention, the PRTB conducts a Paper Based Assessment (PBA).19 This process does not involve an oral hearing and is facilitated by way of written submissions. The submissions are then assessed by an independent adjudicator and an appeal may by lodged in the same manner as an oral hearing.

7 8 9 5 6

12 13 14 10 11

18 19 16 17

Residential Tenancies Act 2004, s 95(2). Residential Tenancies Act 2004, s 93(2). Residential Tenancies Act 2004, s 97(5). Residential Tenancies Act 2004, s 97(4)(a). Residential Tenancies Act 2004, s 97(3). Residential Tenancies Act 2004, s 98(1)(a). Residential Tenancies Act 2004, s 98(2). Residential Tenancies Act 2004, s 100(1). Residential Tenancies Act 2004, s 100(2). Residential Tenancies Act 2004, s 100(1). The Private Residential Tenancies Board, ‘Guide to Evidence’ (www.prtb.ie ) <http://www.prtb.ie/dispute-reso lution/disputes/guide-to-evidence> accessed 16 January 2014. Residential Tenancies Act 2004, s 20(1)(b). Residential Tenancies Act 2004, s 19(1). Residential Tenancies Act 2004, s 22(2). The Private Residential Tenancies Board, ‘Paper Based Assessment’ (www.prtb.ie ) <http://prtb.ie/faq> accessed 16 January 2014.

relevant considerations for a tenant when entering a lease | 7

3. disputes which pertain to a licence A licensor is not required to register the dwelling with the PRTB and it follows therefore that the dispute resolution mechanism provided by the PRTB does not apply to licences.20 The PRTB specifically prohibits the hearing of cases in respect of a dispute where the landlord resides in the dwelling, (Rent a Room Scheme or in ‘digs’).21 An arbitration clause may be inserted into the written agreement between the parties. Clinic volunteers should consult this document before proceeding. The parties will be bound by the terms of agreement which they have signed. Where there is no provision for dispute resolution in the agreement, the volunteer should encourage the licensee (client) to talk to the licensor and try and work out some kind of arrangement. By way of example, in the past, clients have given notice to the licensor that they wish to leave in one month (or the time stipulated in the agreement) which allows the licensor the opportunity to find a replacement licensee or alternatively, the licensee may offer to find another lodger. A contractual licence may only be revoked in compliance with the terms of the contract itself. The terms of most licence agreements tend to favour the licensor. Licensees rarely take legal advice prior to signing such an agreement and subsequently find themselves in a position of disadvantage. Prospective licensees should take advice before entering such arrangements in the future.

relevant considerations for a tenant when entering a lease Roryann Sweeney and Erica Heslin

1. introduction Entering into a lease with a landlord can be a daunting task for all tenants and especially students who are often leaving home for the first time. A lease is defined by the Residential Tenancies Act 2004 (the 2004 Act) as ‘an instrument in writing, whether or not under seal, containing a contract of tenancy in respect of a dwelling’.22 A lease can be made orally,23 however, it is preferential to have it in writing. Under a lease both tenant and landlord have rights and obligations. In order to ensure that a good landlord and tenant relationship is created, there are certain things that should be considered from the outset.

2. considerations 2.1 Terms of the lease Before deciding upon signing a lease tenants should discuss the terms of the lease with the landlord. Once the lease is signed these terms are unlikely to change so it is important to be clear on what you are agreeing to. The ideal lease should have covenants relating to: a) The amount of rent to be paid. b) What date of each month that rent is to be paid. c) Whether or not utilities are included in the rent. d) Consequences for breach of the lease by either party. e) The required notice period that should be given to the tenant by the landlord in relation to when

22 23 20 21

the landlord can inspect the premises.

Residential Tenancies Act 2004, s 3(2)(g) sates that the Act does not apply to licences. Residential Tenancies Act 2004, s 3(2)(g). Residential Tenancies Act 2004, s 5. JCW Wylie, ‘Landlord and Tenant’ in Bloomsbury Professional (eds), Irish Land Law (4th, Bloomsbury Profes sional, Ireland 2010) Para [17.07].

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2.2 Duration of the lease Students should enquire as to whether they can sign a nine month lease that lasts the academic year as opposed to a full calendar year, as paying rent for months that you are not living on the premises will mean an extra expense. Tenants should not sign a lease if they do not think that they can fulfil all of its requirements. A nine month lease is also favourable as where a tenant resides in a leased property for longer than six months they become entitled to a Part 4 Tenancy under section 20 of the Residential Tenancies Act 2004.24 2.3 Breaking the lease Tenants should be aware that there are few circumstances in which a lease can be brought to an early end: a) Both parties are in agreement. b) One party is in breach of the lease. c) There is a break clause, allowing the landlord or tenant to break the lease early.25 2.4 Rent Tenants should be aware of the amount of rent due, when it is due and also the amount of deposit to be paid. There are certain circumstances when a landlord will keep the deposit, or part thereof, at the end of the tenancy and it is important that the tenant be aware of these circumstances.26 Tenants should also discuss payment methods and ensure that they get a receipt for the deposit, and all subsequent payments, in order to avoid disputes. There may be extra costs that tenants will incur such as electricity, heat, internet bills etc. and before signing the lease tenants should discuss with the landlord what is or is not included in the rent.27 2.5 Lease and rent book In terms of the lease itself, the landlord should provide a written lease, giving the original copy to the tenant. A tenant is entitled to a rent book28 and this is especially important when the rent is paid in cash. On its website, the Private Residential Tenancies Board (the PRTB) outlines the ideal contents of a rent book.29 The book should contain details such as the address of the premises, the name and contact details of the tenant, the duration of the tenancy and the amount to be paid in rent. It is the landlord’s obligation to provide the tenant with a rent book and it is the tenant’s right to have one, failure on the landlord’s part to provide one is against the law and may constitute an offence.30 2.6 Registration of the tenancy Tenants should also ensure that the tenancy is registered with the PRTB, under section 134(1) of the 2004 Act.31 Tenants should ensure that the landlord has complied with this statutory obligation as if the tenancy is not registered this can cause problems in the future such as not being able to provide proof of tenancy for official forms and with regard to tax rebates.32 If tenants discover that their tenancy is not registered, they should fill out a registration enforcement referral form with the PRTB. Upon confirming that the dwelling is unregistered, the PRTB will take action against a landlord in accordance with the 2004 Act.

For further details on Part 4 Tenancies see section on Termination of a Lease & Notice to Quit in this handbook. 25 Threshold, ‘Advice on Signing a Lease’ (www.threshold.ie) <http://www.threshold.ie/advice/seeking-pri vate-rented-accommodation/advice-on-signing-a-lease/> accessed 8 February 2014. 26 Residential Tenancies Act 2004, s 12(4). 27 Residential Tenancies Act 2004, s 16(a)(ii). 28 Housing (Private Rented Dwellings Act) 1982, s 25. 29 The Private Residential Tenancies Board, ‘Being a Good Tenant’(www.prtb.ie ) <http://www.prtb.ie/docs/de fault source/good-tenant-guides/good-tenant-guide-(english).pdf?sfvrsn=4> accessed 8 February 2014. 30 Citizens Information Board, ‘Rent Books’ (www.citizensinformation.ie 2012) <http://www.citizensinformation. ie/en/housing/renting_a_home/rent_books.html> accessed 8 February 2014. 31 For further details in relation to the PRTB see pages 9-12 of this publication. 32 For further details see the section on The Resolution of Disputes Between a Landlord and Tenant in this publi cation. 24

tenants’ rights and obligations | 9

2.7 Inventory A record should be kept by the landlord of all furnishings and appliances in the dwelling. It is advisable for tenants to take their own inventory at the start of the tenancy noting both the furnishings/appliances in the dwelling and also their condition. A good idea is to take photos of anything that is damaged, date them and ask the landlord to counter sign them. This will prevent future disputes and ensure that the tenant does not unjustly lose their deposit. 2.8 Other practical things to consider Before signing a lease, there are also other practical things to be taken into account. These include: a) Tenants should make sure that they can make all payments with regards to the rent and should take into account that if sharing accommodation, they will be liable for rent as a whole, should others in house fail to make the payments. b) Proximity to work and college is also of importance before signing a lease. Prospective tenants should enquire about travel routes, public transport and distances from amenities in order to avoid inconvenience or unprecedented expense. c) Insurance is also something that should be considered. It is common that the landlord’s insurance will only cover the dwelling itself and not the contents.

tenants’ rights and obligations Ella Adler and Jennifer O’Brien

1. introduction The various rights and obligations which relate to landlords and tenants often stem from the tenancy agreement between the parties.33 However, the agreement cannot discharge the legal rights prescribed by the Landlord and Tenants Acts 1967-1994 and the Residential Tenancies Act 2004 (the 2004 Act).34 A landlord is defined in section 5(1) of the 2004 Act as being a person who: ‘…for the time being entitled to receive (otherwise than as agent for another person) the rent paid in respect of a dwelling by the tenant thereof and, where the context so admits, includes a person who has ceased to be so entitled by reason of the termination of the tenancy’. A tenant is also defined in section 5(1) of the 2004 Act as: ‘…the person for the time being entitled to the occupation of a dwelling under a tenancy and, where the context so admits, includes a person who has ceased to be entitled to that occupation by reason of the termination of his or her tenancy’.35 The 2004 Act does not apply to the following: a) A dwelling that is used wholly or partly for the purpose of carrying on a business;36 b) A dwelling let by a public authority (e.g. social housing);37 c) A dwelling in which the landlord (or the landlord’s spouse, parent or child) also resides (e.g. digs);38 d) Dwellings to which the Housing (Private Rented Dwellings) Act 1982 (e.g. dwellings to which rent restrictions apply);39

35 36 37 38 39 33 34

Fiona de Londras, Principles of Irish Property Law (2nd edn, Clarus Press 2011) 394. Residential Tenancies Act 2004, s 18(1). Residential Tenancies Act 2004, s 5(1). Residential Tenancies Act 2004, s 3(2)(a). Residential Tenancies Act 2004, s 3(2)(c)(i). Residential Tenancies Act 2004, s 3(2)(g). Residential Tenancies Act 2004, s 3(2)(b).

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A dwelling that is the subject of a tenancy granted under Part II of the Landlord and Tenant (Amendment) Act 1980 (this Act generally covers business rather than residential tenants).40

2. tenants’ rights Tenants’ rights are primarily outlined in section 12 of the 2004 Act: a) Allow the tenant to enjoy peaceful and exclusive occupation of the dwelling.41 b) To carry out repairs and insure the property meets the regulated minimum standards.42 See this handbook’s section on Accommodation: Maintenance and Repairs. c) Have the property insured by the landlord (not including personal belongings).43 d) To have the deposit promptly returned on the conclusion of the tenancy.44 e) Have contact details for the landlord or their agent.45 f ) Be reimbursed for repairs where the landlord fails to carry them out in certain circumstances.46 g) Not to have the rent increased more than once in a 12 month period, and to receive at least 28 days’ notice of such an increase.47 h) The tenant has a right to use a rent book supplied by the landlord.48 i) Not to be penalised for making a complaint under the 2004 Act.49

3. tenants’ obligations Tenants’ obligations are provided for in chapter 2, section 16(a)-(n) 2004 Act and are as follows: a) Pay rent on the due date and any charges or taxes payable which are agreed to in the tenancy agreement. b) Inform landlord of all repairs necessary. c) To not damage the property (beyond normal wear and tear). d) Allow landlord and/or his agents to inspect the property on an agreed date. e) Inform landlord of the occupants of the dwelling. f ) Avoid acting in an anti-social manner,50 damaging the property, causing a nuisance or breaking the law. g) Abide by the conditions of the tenancy agreement. h) Give notice of termination of the tenancy. i) Keep record of all payments to the landlord, repairs and dealings. j) Do not engage in conduct which may affect the landlord’s insurance premium on the dwelling. k) Not to sub-let or assign the tenancy without the landlords written consent. These obligations cannot be displaced by contract under Section 18(3) of the 2004 Act.51

4. utility bills Section 16 of the 2004 Act confers upon the tenant a statutory obligation to pay any taxes or charges that are deemed to be payable by the tenant in the lease.52 In practice this means that most lease agreements will make

42 43 44 45 46 47 48 49 50 51 52 40 41

Residential Tenancies Act 2004, s 3(2)(c)(ii). Residential Tenancies Act 2004, s 12(1)(a). Residential Tenancies Act 2004, s 12(1)(b). Residential Tenancies Act 2004, s 12(1)(c). Residential Tenancies Act 2004, s 12(1)(d). Residential Tenancies Act 2004, s 12(1)(f ). Residential Tenancies Act 2004, s 12(1)(g). Residential Tenancies Act 2004, s 22(2). Housing (Miscellaneous Provisions) Act 1992, s 17(3)(a). Residential Tenancies Act 2004, s 14. See Residential Tenancies Act 2004, s 17(1). Residential Tenancies Act 2004, s 18(3). Residential Tenancies Act 2004, s 16(a)(ii).

lease/license distinction | 11 provisions for the payment of utility bills by the tenant. A landlord may withhold a deposit or part of a deposit if the landlord has been left with outstanding bills (i.e., public utilities).53 The PRTB website offers the following as an illustration of what generally amounts to taxes and charges in accordance with section 16 of the 2004 Act:54 Gas, electricity, phone and rubbish collection are examples of charges that will arise when renting accommodation. When the tenant pays for these it should be written into the rent book along with all receipts as proof of payment. If electricity and gas coin meters are used then they should be set at the standard rate. If the tenant suspects that the rate is too high then they should contact the relevant service provider e.g. ESB.55 The PRTB website also suggests that, upon termination of a tenancy, a Landlord should ‘seek confirmation that the tenant will close any accounts with utilities, such as ESB, Gas etc., on leaving.’56

5. wear and tear Proper provision for wear and tear is provided for in section 16(f ) of the 2004 Act.57 It states that when assessing the property, the landlord must take into account: a) The time elapsed. b) What could be reasonably be expected due to the extent of the occupation. c) Any other relevant considerations.

6. covenants Landlords and tenants can negotiate covenants for the lease and these must abide the law of contract and statutory requirements. Express covenants must comply with the 2004 Act and will be overridden if they do not.58 Examples of express covenants include covenants to cut the grass, or wash the windows. Some covenants will be implied by statute and common law. Some express covenants can override these implied ones however not if they are stated in the 2004 Act.59

lease/license distinction Hugh O’Donnell

1. introduction The protections, rights, obligations, and, remedies enjoyed by a landholder all vary depending on the nature of the agreement. Identifying whether an agreement is a lease or a license is not always easy. The distinction between a lease and license is crucial as, according to section 3 of the Residential Tenancies Act 2004, the protections of landlord/tenant law only apply to a tenancy.60

Citizens Information Board, ‘Landlords’ Rights and Obligations’ (www.citizensinformation.ie) <http://www. citizensinformation.ie/en/housing/renting_a_home/landlords_rights_and_obligations.html> accessed 04/02/2014. 54 Residential Tenancies Act 2004, s 16(a)(ii). 55 The Private Residential Tenancies Board, ‘Being a Good Landlord’ (www.prtb.ie ) <http://www.prtb.ie/docs/ default-source/good-landlord-guides/good-landlord-guide-(english).pdf?sfvrsn=4> accessed 04/02/2014. 56 The Private Residential Tenancies Board, ‘Being a Good Landlord’ (www.prtb.ie ) <http://www.prtb.ie/docs/ default-source/good-landlord-guides/good-landlord-guide-(english).pdf?sfvrsn=4> accessed 04/02/2014. 57 Residential Tenancies Act 2004, s 16(f ). 58 Residential Tenancies Act 2004, s 18(3). 59 Residential Tenancies Act 2004, s 18(3). 60 Residential Tenancies Act 2004, s 3(1). 53

12 | chapter 2 landlord and tenant law

2. definitions Leases are landholding agreements in which the tenant receives a proprietary interest in a property and the exclusive possession of it, in return for rent or some other form of valuable consideration.61 This is the standard method of holding land for most rented homes in Ireland. Licenses are simply personal, permissive rights granting the licensee the right to possess and occupy land while having no proprietary rights over it.

3. difficulty Some landlords attempt to circumvent the protections of landlord and tenant law by labelling an agreement as a ‘license’ as opposed to a ‘lease’. The problem, for our purposes, is that leases and contractual licenses can look rather similar on their face; both allow one party to hold the land of another, both are based on contract, and both usually are subject to some periodical payment.62

4. solution Courts can look at an agreement in its entirety and disregard a ‘lease’ or ‘license’ label. There are four different characteristics63 that a Court examines to determine whether an agreement is a lease or a license. 4.1 Construction of the agreement The label placed on an agreement is not determinative. A label is simply prima facie evidence of the intention of the parties, which can be overridden by the true operation of their agreement. Practically, this tends to work in favour of the tenant, as if a landlord labels the document a ‘license’, the courts will look past the label to the content. However, if a document says ‘lease’ at the top, that is generally a strong indication that the document is, in fact, a lease. 4.2 Intention of the parties The courts will assess whether in its everyday operation, the relationship between the parties is more akin to a lease than to a license. 4.3 Exclusive possession Exclusive possession is essential to the existence of a lease, but is not determinative of one. Such possession gives the tenant the power to exclude the world at large, including the landlord and to exercise some kind of dominion over the property. It has been suggested that only in exceptional circumstances will the existence of exclusive possession not create a lease.64 These exceptional circumstances include: a) Where there is no intention to enter into a lease. b) Where the landowner does not have the legal capacity to grant a lease. c) Where the exclusive possession enjoyed is related to some other legal relationship. These exceptions put exclusive possession at the heart of determining whether or not a lease exists. Exclusive possession gives rise to a presumption of a lease, but that presumption can be rebutted where there is a contrary inter partes intention. While a landowner can introduce a term suggesting that the landholder does not enjoy exclusive possession, the courts are not willing to accept sham or pretence clauses. 4.4 Payment of rent The payment of rent is an important consideration in the courts assessment of the true nature of a landholding relationship.

63 64 61 62

Landlord and Tenant Amendment (Ireland) Act 1860, s 3. Fiona de Londras, Principles of Irish Property Law (2nd edn, Clarus Press 2011) 395. Fiona de Londras, Principles of Irish Property Law (2nd edn, Clarus Press 2011) 395. Street v Mountford [1985] AC 809 applied in Ireland (in a commercial lease) in Smith v Irish Rail [2002] IEHC 103.

accommodation: maintenance and repairs | 13

accommodation: maintenance and repairs Michael Sinnott

1. legislation and application 1.1 The legislation Landlord and tenant law lays down a number of minimum standards for private residential housing.65 These standards have been regulated in the Housing (Standards for Rented Houses) Regulations 2008, as amended by the Housing (Standards for Rented Houses) (Amendment) Regulations 2009 (the Regulations). 1.2 Application (i) To what kind of buildings do the Regulations apply? The minimum standards laid down in the Regulations apply to ‘every house let or available for letting for rent or other valuable consideration solely as a dwelling’.66 There are some exceptions to this, such as Local Authority housing, communal/shared housing provided by the HSE, or other prescribed government bodies.67 (ii) Are there any limits to their application? There are a number of practical limits to the application of these minimum standards contained in the Regulations. For example, section 3(3) states that ‘[a]ny requirement of these Regulations with respect to repair shall be construed as requiring a standard of repair that is reasonable in all the circumstances and, in determining the appropriate standard of repair, regard shall be had to the age, character and prospective life of the house’.68 The regulations do not create any obligations for landlords to do anything with the supply of water, gas, electricity, or drainage outside of already enacted legislation, or to do anything that is already the responsibility of a Local Authority.69 The landlord is not obliged to ‘repair or maintain in good repair, working order or in a clean condition anything which a tenant is entitled to remove from a house’.70 This means that maintenance of anything that the tenant has brought with them to the property is outside of the landlord’s responsibility.

2. the minimum standards Section 18 of the Housing (Miscellaneous Provisions) Act 1992 gave the Minister a wide discretion to enact regulations, and suggested a non-exhaustive list of the areas which the Minister might address. The current set of applicable regulations were enacted in the Housing (Standards for Rented Houses) Regulations 2008, as amended by the Housing (Standards for Rented Houses) (Amendment) Regulations 2009, and are dealt with in sections 5 to 12 of the 2008 Regulations. It is the landlord’s duty to make sure the rented property complies with all of the minimum standards outlined below.71 2.1 Structural condition The house should be maintained in ‘a proper state of structural repair’.72 ‘A proper state of structural repair’ is explained to mean: ‘sound, internally and externally, with roof, roofing tiles and slates, windows, floors, ceilings, walls, stairs, doors, skirting boards, fascia, tiles on any floor, ceiling and wall, gutters, down pipes, fittings, furnishings, gardens and common areas maintained in good condition and repair and not defective due to dampness or otherwise’.73

65 66

69 70 71 72 73 67 68

Housing (Standards for Rented Houses) Regulations 2008, s 2. Housing (Standards for Rented Houses) Regulations 2008, s 4(1), as amended by the Housing (standards for Rented Houses) (Amendment) Regulations 2009, s 2(b). Housing (Standards for Rented Houses) Regulations 2008, s 4(1). Housing (Standards for Rented Houses) Regulations 2008, s 3(3). Housing (Standards for Rented Houses) Regulations 2008, s 3(4). Housing (Standards for Rented Houses) Regulations 2008, s 3(4)(b)(ii). Housing (Miscellaneous Provisions) Act 1992, s 18(1). Housing (Standards for Rented Houses) Regulations 2008, s 5(1). Housing (Standards for Rented Houses) Regulations 2008, s 5(2) as amended by the Housing (Standards for Rented Houses) (Amendment) Regulations 2009, s 2(c).

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2.2 Sanitary facilities Section 6 requires that there be a toilet, wash hand basin, and fixed bath/shower with hot and cold water provided in the house.74 These amenities are required to be in good working order, be insulated and secured, have an effective means of drainage, and be separated from the rest of the house by a wall and door, and have separate ventilation. Facilities for storing hot water (e.g. a hot water tank) are also required.75 2.3 Heating facilities Section 7 requires every room which is intended for use by the tenant to have a fixed heating appliance (e.g. a radiator) which is ‘capable of providing effective heating’, and is capable of being independently managed by the tenant,76 i.e. the tenant should be capable of controlling the temperature in the room. The section also requires that there be suitable facilities to remove any fumes generated by the heating system.77 2.4 Food preparation and storage Section 8 requires the rented property to have the following, in good working condition:78 a) Four ring hob with oven and grill, b) Suitable facilities for the effective and safe removal of fumes to the external air by means of a cooker hood or extractor fan, c) Fridge and freezer or fridge-freezer, d) Microwave oven, e) Sink, with a piped supply of cold water taken direct from the service pipe supplying water from the public main or other source to the building containing the house and a facility for the piped supply of hot water, and an adequate draining area, f ) Suitable and adequate number of kitchen presses for food storage purposes, Section 8 states that the responsibility for maintaining these facilities rests with the landlord.79 2.5 Laundry In relation to laundry facilities, section 8 requires that the rented property have a washing machine/ access to communal washing facilities, and, where there is no access to a garden, access to a tumble dryer.80 Responsibility for maintenance of these facilities rests with the landlord.81 2.6 Ventilation Section 9 requires that every room of the rented property, which is intended to be habitable needs adequate ventilation (e.g. opening windows or a vent).82 The section additionally requires that adequate ventilation be provided for the removal of water vapour from kitchens and bathrooms.83 2.7 Lighting and windows Section 10 requires that every room intended to be habitable, ‘shall have adequate natural lighting’,84 and that all rooms, as well as halls, stairs, and landings shall have ‘suitable and adequate means of artificial lighting’.85 The section requires that any bathroom windows be screened to ensure privacy.86

76 77 78 79 80 81 82 83 84 85 86 74 75

Housing (Standards for Rented Houses) Regulations 2008, s 6(1). Housing (Standards for Rented Houses) Regulations 2008, s 6(2). Housing (Standards for Rented Houses) Regulations 2008, s 7(1)(a), 7(2). Housing (Standards for Rented Houses) Regulations 2008, s 7(1)(b). Housing (Standards for Rented Houses) Regulations 2008, s 8. Housing (Standards for Rented Houses) Regulations 2008, s 8(4). Housing (Standards for Rented Houses) Regulations 2008, s 8(2). Housing (Standards for Rented Houses) Regulations 2008, s 8(4). Housing (Standards for Rented Houses) Regulations 2008, s 9(1). Housing (Standards for Rented Houses) Regulations 2008, s 9(3). Housing (Standards for Rented Houses) Regulations 2008, s 10(1). Housing (Standards for Rented Houses) Regulations 2008, s 10(2). Housing (Standards for Rented Houses) Regulations 2008, s 10(3).

termination of a lease and notice to quit | 15

2.8 Fire safety Section 11 requires that a rented house ‘contain a fire blanket and either a mains-wired smoke alarm, or two…battery-operated smoke alarms’.87 Each apartment in an apartment building needs a mains-wired smoke alarm, a fire blanket and an emergency evacuation plan, and emergency lighting in all common areas.88 2.9 Refuse facilities Section 12 states that: ‘[t]he house shall have access to suitable and adequate pest and vermin-proof refuse storage facilities’.89 2.10 Electricity and gas Section 13 states that, ‘[i]nstallations in the house for the supply of electricity and gas shall be maintained in good repair and safe working order with provision, where necessary, for the safe and effective removal of fumes to the external air’.90

3. enforcement If a dispute has arisen between the parties in relation to the maintenance of the dwelling, the matter may be brought to the PRTB.91 Any issues pertaining to the enforcement of minimum standards for rental accommodation is dealt with by the Local Authority.92 If a party believes that the dwelling is substandard, he/ she may contact the Local Authority and request that an inspection be carried out.

termination of a lease and notice to quit Nessa Flynn & Lauren Dooley

1. introduction The Residential Tenancies Act 2004 (the 2004 Act) prescribes various procedures which must be followed where a landlord wishes to terminate the tenancy. This means that the tenant is protected by law and the landlord must abide by the procedures which are in place.

2. part 4 tenancies A landlord is entitled to terminate a tenancy once he complies with his statutory obligations. If a tenant has been resident for less than 6 months the landlord can terminate the lease without providing a reason.93 The most prominent protection prescribed by the 2004 Act is provided for in section 28.94 Under this section, where a tenant has occupied the premises for more than 6 months, he/she becomes entitled to what is known as a Part 4 Tenancy,95 provided a notice of termination has not been served on the tenant in during the initial 6 month period.96 A Part 4 Tenancy acts to grant a tenant three and a half years security of tenure, and to severely limit the power of a landlord to terminate a tenancy, by requiring the landlord to adhere to prescribed procedures and notice periods.

91 92 93 94 95 96 89 90

Housing (Standards for Rented Houses) Regulations 2008, s 11(1) as amended by the Housing (Standards for Rented Houses) (Amendment) Regulations 2009, s 2(e). Housing (Standards for Rented Houses) Regulations 2008, s 11(2), 11(3) as amended by the Housing (Stan dards for Rented Houses) (Amendment) Regulations 2009, s 2(e). Housing (Standards for Rented Houses) Regulations 2008, s 12. Housing (Standards for Rented Houses) Regulations 2008, s 13. Residential Tenancies Act 2004, s 12(1)(b). Housing (Minimum Standards for Rented Accommodation) Regulations, 2008. Residential Tenancies Act 2004, ss 66 and 69. Residential Tenancies Act 2004, s 28. Residential Tenancies Act 2004, s 28(1). Residential Tenancies Act 2004, s 28(3).

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Many students enter into 9-12 month lease agreements so it is likely that their lease will be subject to the protections prescribed in the 2004 Act. This guaranteed three and a half years security of tenure is something of which all students living in rented accommodation should be aware. Where a landlord seeks to terminate a Part 4 Tenancy, he must comply with the requirements of section 34 of the Act.97 Section 34 of the 2004 Act provides the following grounds for termination: a) Where the tenant has been notified that he or she has committed a breach of his or her obligations under the lease and has not corrected the breach. b) Where the dwelling is no longer suitable to the needs of the tenant. c) Where the landlord is selling the property, under â&#x20AC;&#x2DC;an enforceable agreement for the transfer to another, for full consideration, of the whole of his or her interest in the dwellingâ&#x20AC;&#x2122; within three months of the termination of the part 4 tenancy. d) Where the landlord requires the dwelling for his own occupation or for a member of his family to occupy; pursuant to the landlord providing certain specific details of the proposed family member to the tenant along with a statement that the landlord will offer the tenant a fresh tenancy if the family member quits the property within 6 months. e) Where the landlord intends to substantially refurbish or renovate the dwelling, and where planning permission (if necessary) has been obtained in advance. f ) Where the landlord intends to change the use of the dwelling and planning permission (if necessary) has been obtained. Under section 34 the notice served upon the tenant must contain a provision requiring the landlord to offer the property to the tenant before all others, should the property become available for re-letting. In addition to providing one of the reasons for termination mentioned in section 34 of the 2004 Act, there are various notice periods which must also be complied with where a landlord seeks to terminate a Part 4 Tenancy. Table 1 outlines the required notice period, depending on the duration of the tenancy. â&#x20AC;&#x192; 2.1 Table 1 duration of tenancy

notice by landlord

notice by tenant

Less than 6 months

28 days

Greater than 6 months, but less than a year

35 days

1 year or more, but less than 2 years

42 days

2 years or more, but less than 3 years

56 days

3 years or more, but less than 4 years

84 days

56 days

Greater than 4 years

112 days

56 days

3. abuse of termination procedure If a landlord terminates a Part 4 Tenancy otherwise than in accordance with section 34, the 2004 Act provides a mechanism under which a tenant may seek damages.98 The tenant must make a complaint to the Private Residential Tenancies Board (the PRTB) and they will make an enquiry. The tenant may be reinstated or entitled to damages where the PRTB is satisfied that there has been a breach of the required procedures under section 34 of the 2004 Act.99

99 97 98

Residential Tenancies Act 2004, s 34. Residential Tenancies Act 2004, s 56. Residential Tenancies Act 2004, s 34.

termination of a lease and notice to quit | 17

4. notice to quit A notice to quit is used to terminate leases in periodic tenancies and in all residential tenancies.100 In the cases of leases for a term certain/fixed term tenancies, (which automatically terminate once the predetermined duration of the lease has expired) there is no prohibition on inserting a clause into the lease that allows for its termination through a particular notice period instead: this does not rid the estate of its ‘term certain’ character.101 A notice to quit can be served by either the landlord or the tenant and by any person who has been specifically authorised to serve such notice (implied authorisation may arise in limited situations).102 Parts 5 and 6 of the 2004 Act provide for the termination of residential tenancies. Notice of Termination (as it is called in the 2004 Act) is now the only means by which a residential tenancy can be terminated.103

5. valid notice: termination of tenancy by landlord or tenant Regardless of the reason for the termination, the process is always the same. The person ending the tenancy must serve a notice of termination on the other party and that notice must comply with the 2004 Act in terms of the content of the notice itself and the amount of notice given.104 Section 62 of the 2004 Act provides that in order to be valid, a notice of termination must: a) Be in writing [Email, text, verbal notice do not suffice at law].105 b) Be signed by the landlord or his or her authorised agent or, as appropriate, the tenant. c) Specify the date of service of it. d) Be in such form (if any) as may be prescribed. e) If the duration of the tenancy is a period of more than 6 months, state (where the termination is by the landlord) the reason for the termination. f ) Specify the termination date,… [State that on the termination date the tenant has the whole 24 hours of this date to vacate possession] g) State that any issue as to the validity of the notice or the right of the landlord or tenant, as appropriate, to serve it must be referred to the Board under Part 6 within 28 days from the date of receipt of it. It is an offence for a landlord/agent to knowingly take any action in reliance on an invalid Notice of Termination that he/she knew or ought to have known was invalid.106

6. serving the notice 6.1 Where the landlord wishes to terminate the tenancy The notice may be served on the tenant in person, may be left at the rented dwelling, or may be posted to the dwelling. If it appears that the tenant is not in occupation, the notice may be served in a conspicuous position on the outside of the dwelling.107 6.2 Notice of termination of tenancy by multiple tenants Where the tenancy is let to a number of tenants jointly, the notice of termination will be valid if it is signed by any one of the multiple tenants on behalf of all the tenants. The other tenants must be named in the notice. A purported notice is not valid if the other named tenants have not agreed to its service.108

102 103 104 105 106 107 108 100 101

Residential Tenancies Act 2004,s 58. Fiona de Londras, Principles of Irish Property Law (2nd edn, Clarus Press 2011) 394. Fiona de Londras, Principles of Irish Property Law (2nd edn, Clarus Press 2011) 414. Residential Tenancies Act 2004,ss 58 and 59. Private Residential Tenancies Board, ‘Terminating a tenancy’, www.prtb.ie. Threshold the National Housing Charity “How your landlord may end your tenancy”, www.threshold.ie. Threshold the National Housing Charity “How your landlord may end your tenancy”, www.threshold.ie. Private Residential Tenancies Board, ‘Terminating a tenancy’, www.prtb.ie. Private Residential Tenancies Board, ‘Terminating a tenancy’, www.prtb.ie.

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6.3 Where the tenant wishes to terminate the tenancy The notice may be served on the landlord or his/her agent in person, or may be left at or posted to the landlord/agent contact address.109

7. lesser notice periods by landlords and tenants The tenant is entitled to terminate the lease for any reason upon service of the appropriate period of notice. The only exception is where a tenant attempts to serve a notice in order to cut short a fixed term lease and there has been no breach on the part of the landlord. In certain situations a tenant may terminate the tenancy on the service of a shorter period of notice in accordance with Section 68 of the 2004 Act, for example where the behaviour of the landlord or the state of the property poses an imminent risk to the tenant’s life.110

recovery of deposits Niamh Fitzgerald

1. introduction Under the Residential Tenancies Act 2004 (the 2004 Act) a tenant must adhere to the notice periods prescribed by the Act when terminating a tenancy.111 This is of particular importance in the context of deposit retrieval at the end of the tenancy. A deposit is a payment which the tenant makes to the landlord at the beginning of the tenancy, from which the landlord may deduct the cost of rent arrears or the cost of damage or excessive wear and tear of the accommodation in the necessary circumstance.112 However, where a tenant does not give sufficient notice to their landlord in the event of the termination of the tenancy, resulting in a loss to the landlord, the tenant may not be entitled to all, if any of their deposit, depending on the value of the resulting loss that the landlord has suffered.113

2. a practical example One common topic that is often referred to the PRTB is complaints of tenants where their landlord is seeking to withhold all (or part) of the deposit where this tenant has adhered to the terms of their lease. For example, where the tenant has given sufficient notice and there is no issue of rent arrears or unpaid bills. A common reason which the landlord may give for withholding all, or part, of the deposit is for damage above normal wear and tear caused by the tenants to the property.114 To avoid this, a tenant can make a list of all the issues that arise with the property when he/she first moves in, and show this list to their landlord at the first available opportunity to avoid getting the blame for these issues at a later date. All relevant evidence including photographs and documentation can be useful before the PRTB to assist in the process of the case. It is illegal in all circumstances for the landlord to hold a tenant’s possessions in lieu of money owed.115

3. lease for an agreed period

It is important to note that in cases where the tenant has signed a lease for a fixed period, the landlord may keep the deposit if the tenant leaves before the end of this period, as there is no option to terminate the lease early.

111 112 113 114 115 109 110

Private Residential Tenancies Board, ‘Terminating a tenancy’, www.prtb.ie. Residential Tenancies Act 2004, s 68. Residential Tenancies Act 2004, s 66(1). The Private Residential Tenancies Board, ‘Being a Good Tenant’, www.prtb.ie. The Private Residential Tenancies Board, ‘Being a Good Tenant’, www.prtb.ie. Residential Tenancies Act 2004, s 12(4)(a)(ii). The Citizens Information Board, ‘Types of Tenancy in Ireland’, www.citizensinformation.ie.

sample clinic questions | 19

4. methods of deposit recovery The Small Claims Court may be a useful venue for the recovery of security deposits which have been retained unfairly, where the PRTB is unavailable e.g. where the 2004 Act doesn’t apply.

sample clinic questions Emily McMorrow

1. queries SLS members must have a clear understanding of a query before giving information. The way to develop this understanding is through questions. The type of question to be asked will vary in accordance with the nature of the issue raised. The following are some questions which can be crucial to any landlord and tenant issue. 1.1 Landlord and tenant a) Who is making the query, the tenant or the landlord? b) Is an agreement in place, is it a licence or lease agreement? c) What type of tenancy does the tenant have, a periodic or a fixed-term tenancy?116 Tenants renting a room in a house where the landlord lives will not be entitled to these rights; thus it is important to ask about such arrangements.117 1.2 Lease/licence See the section in this handbook on the lease/license distinction.

2. tenant 2.1 Rights For quires relating to a tenant’s rights in private rented accommodation refer to: a) The Landlord and Tenant Acts 1967 to 1994 and the Residential Tenancies Act 2004. b) The Housing (Standards for Rented Accommodation) Regulations 2008. c) The Housing (Standards for Rented Accommodation) Act 2009. To assess potential breaches of a tenant’s rights under the relevant legislation, it is useful to question the tenant regarding: a) Standards of accommodation.118 b) Exclusive possession. c) Landlord entering the premises without permission. d) Notice/eviction after six months of residency and length of the lease.119 If the tenant’s rights have been infringed, ask what they hope to get out of a resolution. On this basis information can be given. 2.2 Rental accommodation scheme Ask if the tenant is receiving any rental supplement. If so then the Local Authority is contracting with the landlord and no deposit should have to be paid by the tenant.120

The Citizens Information Board, ‘Types of Tenancy in Ireland’, www.citizensinformation.ie. Residential Tenancies Act 2004, s (3)(2)(g). 118 Housing (Standards for Rented Houses) Regulations 2008, the Housing (Standards for Rented Houses) (Amendment) Regulations 2009 119 Potential entitlement to a Part 4 Tenancy under the Residential Tenancies Act 2004, s 28. 120 The Citizens Information Board, ‘Rental Accommodation Scheme’ (www.citizensinformation.ie 20 March 2011). 116 117

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2.3 Eviction/notice In situations where a tenant is facing the possibility of eviction, ask about the length of their tenancy to determine the validity of an eviction notice. In particular inquire as to: a) Whether the tenant has resided for less than six months, where this is the case, a landlord may terminate the tenancy without an identified reason.121 b) How much notice has been given to the tenant by the landlord?122 This is relevant for both the landlord and the tenant’s queries.123 2.4 Deposit A landlord is entitled to withhold deposit in certain circumstances. Where a tenant’s deposit is being withheld inquire as to the reason why.124 2.5 Living conditions A landlord does not have the right to enter the property without notice.125 Inquire as to whether the landlord has done so. A landlord is obliged to carry out all necessary repairs to the property.126 Inquire as to whether there is need for repair of the property. 2.6 Private Residential Tenancies Board Ask if their landlord has registered all tenancies with the Private Residential Tenancies Board. The Residential Tenancies Act 2004 requires that all residential tenancies be registered with the PRTB.127 This can be checked on the PRTB’s website www.prtb.ie.

subletting/assignment options available to tenants under a typical lease agreement Shauna Joyce

1. introduction In certain situations a tenant will not wish to carry out the entire term specified in the lease agreement; for example a tenant may be unable to afford the rent, or wish to move properties. In such situations a tenant may be able to assign or sub-let the property to a third party.

2. subletting options

A sub-lease arises where a tenant creates a lease as part of his reversion to a third party. This type of lease will be subject to the same requirements and doctrines as apply to the creation of a normal lease. A sub-lease does not affect the landlord/tenant relationship between the original parties; it merely creates a subsidiary landlord/ tenant relationship.128

121 122

123

126 127 128 124 125

Residential Tenancies Act 2004, ss 66 and 69. A detailed account of the law in relation to notices can be found in the section on Termination of a Lease and Notice to Quit in this handbook. For further details on relevant notice periods see the section on Termination of a Lease and Notice to Quit in this handbook. For further information on deposits see section on Recovery of Deposits. Residential Tenancies Act 2004, s 16(c). Residential Tenancies Act 2004, s 12(b). Residential Tenancies Act 2004, s 134(1). Fiona de Londras, Principles of Irish Property Law (2nd edn, Clarus Press 2011), 410.

subletting/assignment options available to tenants under a typical lease agreement | 21 2.1 How does a sub-tenancy work? Under Part 4 of the Residential Tenancies Act 2004 (‘the 2004 Act’), a sub-tenancy will be deemed to have commenced on the same date as the head-tenancy out of which it was created, and the cycle will continue.129 2.2 The nature and obligations of subletting Generally speaking, subletting arises where a tenant may not wish to occupy a property for the entirety of the lease and lets it to another person. They will then become the ‘head-tenant’, while the person occupying the property in their stead becomes the ‘sub-tenant’. This means that the head-tenant will be bound by all the applicable landlord and tenant law and obligations, as if he was the new sub-tenant’s landlord. This can be quite an onerous responsibility, and is not one to be entered lightly. Usually the head-tenant will remain legally liable for the payment of rent to the landlord, irrespective of whether rent is received from the sub-tenant.130 2.3 When is a tenant unable to sublet? In relation to a Part 4 Tenancy, the creation of a sub-tenancy in respect of any part of the dwelling is prohibited. Furthermore, any such sub-tenancy which is purported to be created is void.131 Unless a tenant has the express written consent of the landlord, they will be unable to sublet the property. However any conditions which seek to restrict the ability of the tenant to sub-let the tenancy are subject to section 66 of the Landlord and Tenant (Amendment) Act 1980, which places an obligation on the landlord not to unreasonably withhold consent.132 Where consent is withheld, the tenant has the right to terminate the lease under section 186(2) of the Residential Tenancies Act 2004. A notice of Termination may accordingly be served by the tenant. 2.4 How else may a sub-tenancy be terminated? The head-tenant may terminate a sub-tenancy in the same way as any other landlord, and the sub-tenant may terminate a tenancy in the same way as any other tenant.133 Where the landlord wishes to terminate the sublease a copy of the notice of termination served on the tenant must also be given to the sub-tenant.134 A landlord may also terminate the original lease agreement without terminating the sublease. Upon receiving such a notice, the head-tenant is obliged to inform the sub-tenant of the termination within 28 days.135 Should a head-tenant refer a termination to the Private Residential Tenancies Board (the PRTB) they must inform the sub-tenant of their intention to do so and the sub-tenant may join the dispute.136

3. assignment options 3.1 How does an assignment work? An assignment is the out and out transfer of an interest in a lease which cannot be created without the consent of the landlord.137 An assignment will usually arise where a tenant does not wish to occupy the property for the entire lease term and therefore decides to transfer the tenancy to another person, thereby ending the original tenant’s involvement in the lease. The original tenant leaves the landlord and tenant relationship entirely.

129

130

133 134 135 136 137 131 132

Threshold-The National Housing Chairty, ‘Residential Tenancies Act 2004-A Quick Guide’ (www.threshold.ie ) <http://www.threshold.ie/download/pdf/residential_tenancies_act_2004_a_quick_guide.pdf> accessed 02 April 2014. Let.ie, ‘Tenants’ Rights and Obligations’ (www.let.ie ) <http://www.let.ie/articles/tenants-rights-andobligations> accessed 2 April 2014. Residential Tenancies Act 2004, s 32(2), 32(3). Landlord and Tenant (Amendment) Act 1980, s 66(2)(a). Let.ie, ‘Tenants’ Rights and Obligations’ (www.let.ie ) <http://www.let.ie/articles/tenants-rights-andobligations> accessed 2 April 2014. Residential Tenancies Act 2004, s 70(3). Residential Tenancies Act 2004, s 70 (1)(c). Residential Tenancies Act 2004, s 81(1)(b). Fiona de Londras, Principles of Irish Property Law (Second Edition Clarus Press 2011), 405.

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As an assignment effectively involves the creation of a new tenancy, the assignee tenant does not inherit the previous tenantâ&#x20AC;&#x2122;s Part 4 tenancy as is the case with a sub-tenant. Therefore, the assignee will begin their own six month qualifying period in order to then have their new lease become a Part 4 tenancy in its own right.138 â&#x20AC;&#x192; 3.2 Termination of an assignment Where a landlord refuses consent to assignment of a fixed term lease, the tenant may terminate the lease before the expiry of the fixed term. This termination applies in the same manner as with a refusal to sub-let the property, as outlined above.139 Where a dispute may exist as to the validity of a termination, the assignee will have the same rights in relation to dispute resolution through the PRTB as normal tenants under Part 6 of the 2004 Act.140

140 138 139

Residential Tenancies Act 2004, s 38 (1)(a). Residential Tenancies Act 2004, s 186(2). Residential Tenancies Act 2004, s 75(1).

chapter 3 consumer law the stages of a consumer complaint Aidan Ward When you have purchased a good or have been provided with a service that is deemed unfit with reference to the criteria laid down in the Sale of Goods and Supply of Services Act 1980 (the 1980 Act),141 there are various remedies available to you as a consumer. However it is important that you go about acquiring these remedies in the right way.

1. before you complain The first and most important step in a consumer complaint is ensuring you know your rights.142 Before you go to the provider of the goods or services, read any written contract between yourself and the vendor. Be aware of any time limits on complaints, i.e. in relation to most retailers you must complain within 30 days of purchase. Even where there is no specific time limit it is important to complain as soon as possible. If you leave it too late, the supplier might consider your delay to be acquiescence to the fault.143 It is important to keep detailed records of your complaint. This includes receipts and proof of purchase. If you paid with cash, your till receipt will be your only proof of purchase, so make sure you keep it safe. If you paid by card, a bank statement can be used as proof of purchase. If the vendor requests to see them, send out a photocopy and keep the original. If you attend a meeting or have a phone conversation with a member of the company, keep a memo of what was said, agreed and the name and position within the company of the individual you spoke with.

2. initial complaint When you first complain, do so in an informal manner and give the company a reasonable time period to address the problem. This will save both yourself and the company a lot of time and aggravation. Ensure that the person you speak to is in the position and has the authority to provide a refund, or other remedy such as a manager or supervisor. When you are speaking to someone in authority be firm, polite, and focus on the facts.

3. formal complaint If the manager fails to address the problem in person, send a formal complaint in writing. Make sure that you stay objective in your complaint and refrain from giving personal opinions or comments. Clearly state all the facts of the situation. It is important to state what action you wish the supplier to take to remedy the fault. Give them a detailed history of your complaint to date, the date of purchase, the problem you are complaining about, who you have already dealt with and any action the company has taken to date. Attach all relevant copy documents in your initial letter to avoid them having to come back to you looking for them, saving everyone time.144 Once again make sure you keep all correspondence between yourself and the company.145

S.I. No. 16/1980 Sale of Goods and Supple of Services Act 1980. http://thecai.ie/your-rights/your-rights/know-your-rights/. 143 http://www.citizensinformation.ie/en/consumer_affairs/consumer_protection/consumer_complaints/ho w_to_ make_a_consumer_complaint.html. 144 http://thecai.ie/your-rights/how-to-complain-effectively/. 145 http://www.consumerhelp.ie/complain-to-a-business. 141 142

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4. taking it further If your complaint in writing fails, forward it to the relevant complaints body if any. Be sure to inform them of all steps you have previously taken to demonstrate to the complaints body that the company has had previous opportunities to address the problem but have failed to do so. Not all complaints bodies have the power to make binding directions. Certain sectors may not have a complaints body so your only available option will be to go to the Small Claims Court. This is dealt with in more detail in the Small Claims Court Procedure section. If you bought the goods from another EU country, whether in person or online, it is advisable that you contact the European Consumer Centre Ireland. Their website (http://www.eccireland.ie/) allows you to submit cross-border complaints.

statutory entitlements under the sale of goods and supply of services act 1980 Samantha O’Brien O’Reilly The 1980 Act sets out the rights of consumers when they buy goods or services from a retailer, the responsibilities of retailers to consumers and the forms of redress consumers are entitled to if they have been denied their rights.

1. the consumer’s rights 1.1 Who is a consumer? Section 3 of the 1980 Act sets out who is defined as a consumer for the purposes of the act. A consumer is a person who buys goods or services for personal use or consumption from someone whose business it is to sell goods or provide services. You are not a consumer if you receive goods as a gift, although in practice most retailers will deal with the recipient of a gift as if they were a consumer, especially where they have a receipt or a gift receipt. 1.2 Statutory requirements for goods When goods are purchased they must: a) Be of merchantable quality - this means that the goods must be of reasonable quality for the price one pays. E.g. one could reasonably expect a t-shirt purchased for €40 to be of higher quality that one for €2.146 b) Be fit for the purpose intended. This could be the normal usage of such goods, for example a lawn mower must cut grass, a mobile phone must make and receive phone calls or a particular purpose, which the seller was informed of at the time of purchase.147 c) Be as described. This could be as they were described in a catalogue, brochure, on the package or by a salesperson.148 d) Match any samples shown by a salesperson etc.149 In addition, a consumer is entitled to believe that the retailer from whom they purchase the goods is the rightful owner of such goods.150

148 149 150 146 147

Sale of Goods and Supply of Services Act 1980, s 14 (2). Sale of Goods and Supply of Services Act 1980, s 14 (3). Sale of Goods and Supply of Services Act 1980, s 13 (1). Sale of Goods and Supply of Services Act 1980, s 13 (1). Sale of Goods and Supply of Services Act 1980, s 12.

statutory entitlements under the sale of goods and supply of services act 1980 | 25

1.3 Statutory requirements for services When services are purchased: a) The work must be done with proper care and diligence. b) The person doing the work must have the necessary skills. c) Any materials provided or used must be of merchantable (reasonable) quality.151

2. the retailer’s responsibilities The retailer is legally responsible for the goods she sells and cannot pass this responsibility onto a manufacturer. A retailer, therefore, cannot refuse to award you an appropriate form of redress or even enter into negotiations about doing so on the basis that ‘they only sell the goods’, ‘it’s not their product’, etc. As you have purchased the good from them, they are the party that must ensure you receive your statutory rights, not the manufacturer. A guarantee may offer additional rights to a consumer but they cannot reduce a consumer’s statutory rights in any way.152 Thus, all references to the guarantee whilst negotiating a form of redress are irrelevant unless they are to offer the consumer additional rights. For example, refusing to give a consumer a refund because the guarantee states that replacement is the only acceptable form of redress is not only irrelevant, but illegal. Signs or statements which try to deny a consumer their rights, for example, ‘no refunds’, ‘no exchanges on sale items’, are illegal, unless they are accompanied by a statement along the lines of ‘this does not affect your statutory rights’.153 Retailers are perfectly within their rights not to offer refunds or exchanges on their products, unless they somehow do not meet the four criteria set out above. Retailers are not obliged to offer you a refund or exchange simply because you have decided you no longer like a good or it does not fit, though many will do so for reasons of goodwill. Where a retailer offers a scheme to refund the price where goods are returned to them in saleable condition within a prescribed time period (e.g. 28 days) then this may be contractually binding on the retailer. A consumer has the same rights whether the goods are offered at a reduced sale price or at full price.

3. redress Redress is what one is entitled to if one is denied one’s rights. If goods or services do not correspond to the criteria as set out above, the redress one is entitled to depends on: a) How serious the fault is. b) When it occurred. c) How soon the consumer complained about it. In general, where goods are faulty, the consumer is entitled to: a) A cash refund (not a credit note, if one is offered, a consumer may choose to accept this in lieu of cash but they are not obliged to); b) A replacement or; c) A repair. If a consumer agrees to have the goods repaired, they can still retain the right to a refund if the repair is not satisfactory.154 It is the consumer’s choice which one of these remedies they choose to accept and a retailer cannot oblige them to pick a certain one. 3.1 Unjustified complaints A consumer is not entitled to any form of redress if: a) The fault has arisen through misuse or abuse of the goods,

153 154 151 152

Sale of Goods and Supply of Services Act 1980, s 39. Sale of Goods and Supply of Services Act 1980, s18 (1). Sale of Goods and Supply of Services Act 1980, s 11 (4). Sale of Goods and Supply of Services Act 1980, s 21.

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b) c)

The fault was brought to the consumer’s attention prior to purchase, for example the goods were marked ‘damaged’ or ‘seconds’,155 A reasonable examination at the time of purchase would have revealed the defect.156

4. miscellaneous provisions 4.1 Unsolicited goods/inertia selling Inertia selling is where people are sent goods they have not ordered and a bill is sent requesting payment. In this situation, the consumer does not have to pay for these goods. If the sender has not collected the goods after a six month period, the consumer can keep the goods free of charge.157 4.2 Hire purchase A consumer who buys goods under a Hire Purchase Agreement has the same rights as a cash buyer. 158

holidays and flights – the consumer issues Lalina Zaffar There are numerous laws that concentrate on the rights and privileges of passengers who choose to travel by air. Some of these laws came into being from international conventions and hence apply internationally, while others were constituted by the European Union and therefore only apply in the Member States.

1. flight delays Passengers experiencing extended flight delays are entitled to compensation in specified circumstances. The right to compensation is established in Regulation 261/2004. The Regulations do not explicitly provide compensation for passengers whose flights are delayed but it does explicitly provide for cancellation compensation. The Sturgeon judgment159 in 2009, extended the right of compensation to delayed flights where the person arrives at their destination 3 hours or more later than the scheduled time, unless it is convincingly explained by the airline that the delay was the result of an unforeseen event. The form of compensation depends on the air-carrier and the type of delay encountered. The amount of compensation payable in respect of non-EU flights of distances more than 3500km can be halved if you arrive at your destination less than 4 four hours after the scheduled arrival time. If the flight has been delayed beyond the length of time outlined below, then you are entitled to be provided with care and assistance, as well as a written report detailing your compensation. The timeframes for delays and the compensation payable are as follows:160 a) Short haul flights less than 1500kms with a delay of more than 2 hours - Amount payable: €250 per person. b) Medium haul flights, European flights more than 1500kms and below 3500kms with a delay of more than 3 hours - Amount payable: €400 per person. c) Long haul flights travelling to the non-EU countries with a delay of more than 4 hours - Amount payable: €600 per person. In instances where there is a delay greater than 5 hours, regardless of journey time, the customer is entitled to a full refund should they decide not to take the flight.

Sale of Goods and Supply of Services Act 1980, s 14 (2)(a). Sale of Goods and Supply of Services Act 1980, s 14, (2)(b). 157 Sale of Goods and Supply of Services Act 1980, s 47 (1). 158 Part III of the Sale of Goods and Supply of Services Act 1980 deals with Hire Purchase. 159 Case C-402/07 Sturgeon. 160 Http://www.aviationreg.ie/air-passenger-rights/delay.210.html. 155 156

holidays and flights – the consumer issues | 27

The air carrier is also expected to provide ‘care and assistance’ in the event of a delay. This includes hotel accommodation in situations where an overnight stay is a necessity, the provision of meals and refreshments, allowances for making two calls or emails as well as the provision of transport between the hotel and the airport. If in any case an individual must make their own arrangements for the above situations and the above services are not provided by the airline, then the customer is entitled to a reimbursement of the expenses encountered and should keep a record of all relevant receipts.

2. flight cancellation With regard to flight cancellation, when an individual is notified of their cancellation the air-carrier must offer a choice of one of the following:161 a) Flight be rerouted as close as possible to the original departure time, b) Rerouting it to another day, c) Or reimbursement of the cost of the unconsumed flight ticket. There are other types of entitlements and compensations also available which are determined according to the immediacy of the notice given.162 2.1 Less than 7 days notice If the person choses to reroute their flight to the closest possible departure time, where the new departure time is more than 1 hour before the original time and arrival is more than 2 hours after the originally scheduled arrival time then they are entitled to compensation, except in the cases where exceptional circumstances are proven by the airline. 2.2 Between 7 days and 2 weeks notice If the new flight departs more than two hours before the original scheduled time of departure and arrives more than four hours after the original scheduled arrival time, the customer is entitled to compensation. 2.3 More than 2 weeks notice Where an individual receives more than 2 weeks notice than he/she is not entitled to receive compensation from the air-carrier but they can cancel and get a refund of the flight cost. In situations where the air-carrier decides to re-route the flight to a different airport from the original airport, then the cost of transport from the original airport to the re-routed one must be paid for by the air-carrier. If there is a dispute between the individual and the air-carrier about the presence of exceptional circumstances and payment of compensation then the issue should be passed onto the suitable enforcement body. In Ireland, this is the Commission for Aviation Regulation. The relevant enforcement body is the one for the country where the disruption took place, e.g. where a flight from London to Dublin is cancelled, the appropriate enforcement body is the UK one. In the event of the reservation being cancelled by the consumer they are at all times bound by the terms and conditions agreed to at the time of purchase. Some tickets are fully refundable while others, especially “lowfare” tickets are normally non-refundable except for the “taxes and charges” aspect. Claims for refunds should be made directly to the airline and as early as possible and some may charge an administration fee for carrying out the refunds.

3. cancellation of package holiday flights The law relating to package holidays is extensively outlined in the Package Holidays and Travel Trade Act 1995.

http://www.citizensinformation.ie/en/travel_and_recreation/air_travel/compensation_for_overbooked_and_ delayed_flights.html. 162 http://ec.europa.eu/ireland/the_eu_and_you/faq/air_travel/index_en.htm#6. 161

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insurance policies and making a claim Lorna Verdon

1. the five principles of insurance The following five principles constitute the basic legal requirements for a valid contract of insurance between the insurer and the insured, and should be borne in mind by all consumers taking out insurance policies: 1.1 Insurable interest A person has an insurable interest when the physical existence of the insured object gives him/her some gain but damage of the object will cause the insured to incur some financial loss.163 1.2 Utmost good faith The insurance contract must be signed by both parties in absolute good faith. All material facts known to the insured must be disclosed when answering questions on the proposal form and in dealing with any insurance claim. It is the responsibility of the insured to tell the insurance company of any previous claims. If he/she fails to disclose relevant details (non-disclosure), the insurance policy may be deemed null and void.164 1.3 Indemnity Under the principle of indemnity, the insurer guarantees to compensate the insured for the actual loss suffered and therefore restore the insured to the position he/she was in prior to the loss. The insured is not entitled to make a profit from the event.165

(i)Contribution Where the insured has taken out more than one policy on the same subject matter, and has claimed the full amount of compensation from one insurer, then he/she cannot claim the same compensation from another insurer and make a profit. If one insurance company pays the full compensation then it can recover the proportionate contribution from the other insurance company. (ii)Subrogation When the insurance company has paid out the claim, it steps into the place of the insured and inherits all his rights and remedies against third parties. 1.4 Mitigation When a potentially damaging event occurs, the insured must take all possible measures to minimise loss of the insured property. It is a responsibility of the insured to protect his insured property and avoid further losses. 1.5 Proximate cause Where there is more than one cause of property loss in succession of each other, the nearest cause should be taken into consideration when deciding the liability of the insurer. If the proximate cause is the one which is insured against, the insurer must pay compensation.

2. travel insurance Travel insurance can be necessary as, even if a person has health insurance which covers medical expenses while abroad, it will not cover anything else that might happen, such as damaged or delayed luggage, cancelled flights, delayed or missed departure, loss or theft of money or passport. Policy terms and conditions differ between providers and, if the insured is unclear about any of these, it is advisable that they contact their provider before travel. Travel agents, including working abroad visa providers, may sell travel insurance as part of a package. However, better value may be available from a separate provider, particularly if a person will need travel insurance again later in the year.

165 163 164

Lucena v Craufurd (1806) 2Bos & PNR 269. Carter v Boehm (1766) 3 Burr 1905. Castellain v Preston (1883) 11 QBD 380.

insurance policies and making a claim | 29

2.1 European Health Insurance Card The European Health Insurance Card (EHIC) either covers or reduces the costs associated with necessary medical treatment, if required, in Switzerland or the European Economic Area, which includes 27 member states of the European Union (Croatia is not currently included), Iceland, Liechtenstein and Norway. The EHIC is available free of charge and more information can be found at http://www.hse.ie/eng/services/list/1/ schemes/EHIC/. An individual may also be covered for illness or injury abroad under their own private health insurance.

3. car insurance It is a criminal offence for drivers to drive uninsured on public roads in Ireland.166 Following a recent ruling of the European Court of Justice, insurers have to charge the same prices to women and men for the same insurance products without distinction on the grounds of sex.167 However, insurers may distinguish on the grounds of age and younger drivers are likely to have to pay higher premiums for car insurance.168 There are three forms of car insurance available. 3.1 Third party insurance This is the minimum legal requirement for motor insurance. It pays out for claims that other people make against the insured for damage or injury caused by him/her. The insured will not be covered for damage sustained in an accident to his/her car or in instances of fire or theft. 3.2 Third party fire and theft insurance This covers the above and insures for loss of the vehicle through fire or theft. 3.3 Comprehensive insurance This covers the above and also allows the insured to claim for damage to his/her car, regardless of blame. Extra benefits, such as cover for stolen items, windscreen cover and no-claims discount, may also be included but will vary between insurers. A higher premium will be payable for comprehensive cover. An insurance company can refuse to provide motor insurance to a person provided they are not in breach of equality law. They must provide a written reason for such refusal if requested and must be able to show that the difference in treatment is reasonable and justified in relation to the risks involved.

4. how to make a claim In order to make a claim on any form of insurance, the insured should: a) Call his/her insurance company as soon as there is an issue; b) Give brief details of the claim and request a claim form; c) Insurance company will then give advice on what to do next. 4.1 Travel insurance claim It is important that an individual reads their policy before travelling as some policies will have very specific instructions which need to be followed, and time limits which may apply while abroad in order for a claim to be made. The insured should keep all documents and paperwork (e.g. police reports, medical forms, etc.) which support a claim and should make his/her claim as soon as possible. 4.2 Motor insurance claim Before a claim on motor insurance is made, the insured must first consider that their no-claims discount will likely be lost and it may be difficult to shop around for certain types of cover on renewal. The insured should also check the excess clause in their policy. This clause provides that the insured must pay the first portion of any loss or damage to his/her property. Amounts less than the excess will not be claimable.

166 167

168

Road Traffic Act 1961, s 56. Case C-236/09 Association belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres [2011] ECR I-00773. Equal Status Act 2000, s 5(2).

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5. what to do if an insurance claim is rejected An insurance claim may be refused for a number of reasons: a) The loss being claimed for is not covered by the insurance policy; b) One of the conditions in the policy has not been met. In the case of a theft, burglary or accident, the insured may be required to report it to the Gardaí; c) The damage is not covered by a specific risk covered by the policy; d) The insurer has evidence that the initial application form was not completed accurately or truthfully, or vital information was not disclosed to the insurer. If an insurance claim is refused, the insurance company or broker must contact the insured, in writing, to explain the reasons for refusal and provide details of how to appeal the decision.169

misleading advertising Simon Collis

1. legislation 1.1 The legislation The primary legislation governing misleading advertising is the Consumer Protection Act 2007 (the 2007 Act), which transposes Directive 2005/29/EC on Unfair Commercial Practices170 into Irish law. The act states that ‘[a] commercial practice is misleading if it includes the provision of false information ... and that information would be likely to cause the average consumer to make a transactional decision that the average consumer would not otherwise make.’171 Also, ‘[a] commercial practice is misleading if it would be likely to cause the average consumer to be deceived or misled’.172 1.2 Application (i) To whom does the legislation apply? The legislation applies to traders, who are defined as a ‘person who is acting for purposes related to the person’s trade, business or profession’173 or someone acting on their behalf. This means it does not apply to dealings between individuals. (ii) What goods are covered by the legislation? The act applies to the sale of any product which includes both goods and services. ‘Goods’ can be property of any nature or description including gas, electricity, water, tickets for events or transport, computer software and vouchers. ‘Services’ includes the provision of any service or facility such as finance, transport, entertainment, accommodation and membership of an organisation.174

2. advertising standards Section 43 of the act defines a commercial practice as misleading if it provides false information in relation to any of the following: a) The existence or nature of a product; b) The main characteristics of a product...;175 c) The price of the product, the manner in which that price is calculated or the existence or nature of

Central Bank of Ireland, Consumer Protection Code at 7.19, available at http://www.centralbank.ie/consumer/ cpc/rebates/Pages/Claims%20Processing.aspx. 170 Directive 2005/29/EC. 171 Consumer Protection Act 2007, s 43(1). 172 Consumer Protection Act 2007, s 43(2). 173 Consumer Protection Act 2007, s 2(1). 174 For a complete list of examples of characteristics of a product, see Consumer Protection Act 2007, s 2(1). 175 Consumer Protection Act 2007, s 43 (3)(b). 169

misleading advertising | 31

a specific price advantage; d) The need for any part, replacement, servicing or repair in relation to the product; e) The existence, extent or nature of any approval or sponsorship (direct or indirect) of the product by others; f ) The nature, attributes or rights of the trader, including, without limitation, the following: (i) The trader’s identity, qualifications, assets or status; (ii) The trader’s affiliation or connection with others; (iii) The existence, extent or nature of— (I) Any industrial, commercial or intellectual property rights the trader may have, or (II) Any award, distinction, approval or sponsorship (direct or indirect) the trader has or has received; g) The extent of the trader’s commitments; h) The trader’s motives for the commercial practice; i) The nature of the trader’s supply process; j) The legal rights of a consumer (whether contractual or otherwise) or matters respecting when, how or in what circumstances those rights may be exercised.176 It is up to the trader to be able to substantiate the claims they make about a product. The burden is on them to show a claim to be true. It is not a defence for a trader to show that a claim is factually true if it is still misleading,177 and the full circumstances will be taken into account when determining whether it is misleading.178 The provisions apply to any communication of information by a trader to the consumer, it is not just limited to traditional advertisements. The act also does not allow for advertising intended to pass off a product as a competitor’s,179 or to mislead a consumer by the omission of information that a consumer would need to make an informed decision.180

3. asai code The Advertising Standards Authority for Ireland is an independent self-regulatory body. It maintains a code,181 available online, that sets down standards for the advertising industry. The code applies to nearly all forms of communication used in marketing. It states that advertising must be ‘legal, decent, honest and truthful’.182 It places a burden on companies to be able to substantiate any claims they make,183 and ‘should not exploit the credulity, inexperience or lack of knowledge of consumers’.184 It also says that ‘a marketing communication should not mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise’.185 Prices must match the good displayed and include taxes, charges and inescapable costs for the consumer.186

4. eu law An EU directive187 forbids any misleading advertising by any company within the EU, this has been implemented in Ireland.188 It defines misleading advertising simply as ‘any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed’.189

178 179 180 181 182 183 184 185 186 187 188 189 176 177

Consumer Protection Act 2007 s 43(3). Consumer Protection Act 2007 s 43(4). Consumer Protection Act 2007 s 43(5). Consumer Protection Act 2007 s 44. Consumer Protection Act 2007 s 46. Manual of Advertising Self-Regulation with the Code of Standards for Advertising, Promotional and Direct Marketing in Ireland, 6th Edition. Advertising Standards Authority Ireland Code s 2(1). Advertising Standards Authority Ireland Code s 2 (9). Advertising Standards Authority Ireland Code s 2 (22). Advertising Standards Authority Ireland Code s 2 (24). Advertising Standards Authority Ireland Code ss 2 (41) and 2 (42). Council Directive 84/450/EEC. Misleading Advertising 1988, SI 134/1988. Council Directive 84/450/EEC, Ar 2.

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5. redress Apart from dealing with the company itself there are a number of options when dealing with misleading advertising. Complaints regarding misleading advertising can be brought to the National Consumer Agency. It can take actions against the business. Similarly the Advertising Standards Authority for Ireland can take complaints through its website. However, neither of these bodies has the power to get compensation for someone who has bought a product due to misleading advertising. Any individual or organization may apply to the Circuit Court or the High Court for an order prohibiting a trader or person from engaging in practices prohibited under the Consumer Protection Act 2007.190

small claims court procedure Grace Bolger

1. introduction The Small Claims Court procedure provides consumers with an easy, inexpensive, relatively fast venue for solving disputes without employing a solicitor. This process is used for complaints where the claim is for €2000 or less.191 The Small Claims service is provided for in all District Courts.

2. definitions

A ‘consumer’ is defined as a purchaser of goods or a service supplied for private use or consumption, where the purchaser does not make the contract in the course of a business and the vendor does make the contract in the course of a business’.192 A ‘business’ is defined as a natural or legal person (including a company, partnership, or natural person trading as a sole trader) who supplies, sells, or purchases goods or services in the ordinary course of a business’.193

3. types of consumer complaints 3.1 consumer small claim194 A consumer can make a claim for: a) Goods or services (e.g. faulty goods or bad workmanship) that they bought for private use from someone selling them as part of a business. b) A claim for minor damage to their property. c) A claim for the failed return of a rent deposit for certain kinds of rented properties that do not come within the area of the Private Residential Tenancies Board.195 For example, a deposit for a holiday home or room/flat where the owner also lives. Claims that are not dealt with are: a) A hire-purchase agreement, to which the Consumer Credit Act 1995196 applies. b) An alleged breach of a leasing agreement. c) A claim for debt or money owed. d) A claim for personal injuries.

192 193 194 195 196 190 191

Consumer Protection Act 2007, s 71. District Court (Small Claims) Rules 2009, SI 2009/519, s 1. District Court (Small Claims) Rules 2009, SI 2009/519, s 1. District Court (Small Claims) Rules 2009, SI 2009/519, s 1. District Court (Small Claims) Rules, 2009, SI 2009/519, s1. Residential Tenancies Act, 2004, s 3. Consumer Credit Act, 1995.

small claims court procedure | 33

3.2 Business small claim197 Businesses can make a claim for goods or services that they bought for business use from someone selling them as part of a business. This does not apply for: a) A hire-purchase agreement, to which the Consumer Credit Act 1995198 applies. b) An alleged breach of a leasing agreement. c) Claims regarding debt or liquidated damages.

4. how to make a claim To apply for the Small Claims Court, you can download an application form from www.citizensinformation. ie or from any District Court office, or alternatively, you can apply online on www.courts.ie. You make your claim to the District Court office in the area where the person you are making a claim against lives or carries out business, where the contract was made, or where the damage to property took place.

5. the process After the claimant completes the application and sends it to the Registrar accompanied by the relevant fee of €25, the Registrar will register the application and will send a copy of the claim and a Notice of Claim to the respondent.199 At this point, the respondent has various options of responding to this claim: 5.1 Admits the claim The respondent has 15 calendar days to reply to the claim. Where the respondent admits the claim and agrees to pay the amount claimed, consents to judgment, or wishes to pay by instalments the amount claimed, he/she will complete a Notice of Acceptance of Liability, and return it to the Small Claims Registrar. The claimant will be notified accordingly by the Registrar.200 5.2 Disputes the claim Where the respondent wishes to dispute the claim, he/she has 15 calendar days to return the Notice of Dispute to the Registrar, of which the Registrar sends a copy to the claimant.201 The Registrar will try to settle the dispute, but if no settlement can be reached, the matter is brought before the court.202 5.3 Counterclaims If the respondent wishes to make a counterclaim, he/she has 15 calendar days to return the Notice of Dispute form to the Registrar, along with the appropriate fee. 5.4 Ignores the claim Where the respondent fails to return either the Notice of Dispute or the Acceptance of Liability form within the time permitted, and fails to contact the Small Claims Registrar within that period, he/she is held to have admitted the claim. The claimant swears an Affidavit of Debt and makes a request for Judgment and Decree, and the respondent will be notified accordingly.203

6. the court hearing If the Registrar fails to settle a matter, the dispute will be heard by a District Court judge. The Small Claims Office will contact you to tell you the time, date and location of your court hearing. Under Irish law, businesses must be legally represented for court proceedings. Legal assistance is not essential for other consumers, but it may be helpful.

199 200 201 202 203 197 198

District Court (Small Claims) Rules, 2009, SI 2009/519, s 1. Consumer Credit Act, 1995. District Court (Small Claims) Rules 2009, SI 2009/519, s 3. District Court (Small Claims) Rules 2009, SI 2009/519, s 6(1). District Court (Small Claims) Rules 2009, SI 2009/519, s 7. District Court (Small Claims) Rules 2009, SI 2009/519, s 8(2). District Court (Small Claims) Rules 2009, SI 2009/519, s 11.

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The judge will usually decide on the result of the hearing on the day, and he or she will make an order or Decree. The judge can make an order for the respondent to pay a certain amount to the claimant, or to provide a certain service within a period of time. If the judge makes a decree for an amount of money, the respondent has 28 days to pay the claimant.

chapter 4 students and the justice system the remit of the sls in the criminal sphere Ruth McGuinness It is important to remember from the outset that if a client comes with a criminal query, volunteers should consult clinic coordinators or the SLS Chairman before giving any legal information and suggest that a solicitor might be better qualified to handle their query. The SLS usually provides information relating to consumer, landlord and tenant, and employment issues and in general criminal issues are not dealt with.

public order offences Ruth McGuinness and Eman Awan

1. what constitutes a public order offence? 1.1 What is a public place? The common thread that unites all public order offences is that the offence in question must have occurred in a “public place”.204 A public place includes any mode of transport that requires a reward or payment, parks, churches, graveyards and any other place or premises to which the public have been granted access. 1.2 Intoxication in a public place The most common public order offence is intoxication in a public place. Under the Criminal Justice (Public Order) Act 1994,205 it is an offence for any person to be present in a public place while intoxicated to such an extent as would give rise to a reasonable apprehension that that person might endanger himself or any other person in the vicinity. Intoxicated means that a person is under the intoxicating influence of any alcoholic drink, drug or solvent.206 If a person is suspected of being intoxicated in a public place, the Gardaí may seize without a warrant any bottle or container together with its contents where they reasonably suspect it contains an intoxicating substance,207 irrespective of whether the container is open or unopened or whether the contents have been consumed.208 Like all public order offences, intoxication in a public place is a summary offence and is dealt with by a judge sitting without a jury in the District Court. If found guilty of the offence, a person convicted by the District Court will have to pay a fine up to €500.209 Gardaí also have the power to issue an ‘on-the-spot’ fixed charge fine of €100 for being drunk in a public place.210 This gives a person charged with the offence the option of paying €100 instead of being prosecuted in court. The fine does not have to be paid immediately and can be handed over within 28 days. After the

206 207 208 209 210 204 205

Criminal Justice (Public Order) Act 1994, s 3. Criminal Justice (Public Order) Act 1994, s 4. Criminal Justice (Public Order) Act 1994, s 4(4). Criminal Justice (Public Order) Act 1994, s 4(3). Intoxicating Liquor Act 2008, s 18. Intoxicating Liquor Act 2008, Schedule s 22(2). Criminal Justice (Public Order) Act 1994, s 23B as amended by Criminal Justice Act 2006, s 184.

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28 days expire, this increases to €150.211 If the €150 fine is not paid within another 28 days (i.e. after the expiration period), the person will be prosecuted in the District Court where the maximum penalty is €500. 1.3 Disorderly conduct in a public place The second most common public order offence is disorderly conduct in a public place. Disorderly conduct refers to ‘offensive conduct’ in a public place between the hours of 12 o’clock midnight and 7 o’clock in the morning or at any other time after having being requested to stop by a member of the Garda Síochána.212 ‘Offensive conduct’ means any unreasonable behaviour which is likely to cause serious offence or annoyance to any person who is aware of the behaviour.213 It includes behaviour that has a detriment on the quality of people’s lives, e.g. shouting outside someone’s house at 2am, but falls short of threatening behaviour.

Similar to being drunk in a public place, the Gardaí have the power to issue an ‘on-the-spot’ fixed charge fine of €140 for disorderly conduct in a public place. In the same way, a person charged has 28 days to pay the fine. After 28 days, this increases to €210. If the €210 fine is not paid in the following 28 days, the person will be prosecuted in the District Court214 where the maximum penalty in €1000.215 In order to be treated as a fixed charge fine, the person charged with disorderly conduct in a public place must provide their name and address to a member of an Garda Síochána.216 Failure to do so is an offence which may result in an arrest without a warrant,217 a summary conviction in the District Court and a fine of up to €1,500.218 1.4 Threatening, abusive or insulting behaviour in a public place It is an offence for any person in a public place to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace. Similarly, being reckless as to whether their words or behaviour might provoke a breach of the peace is an offence.219 For example, shouting abusive or insulting words at someone outside a night club either intending to start a fight or being reckless as to whether it may cause a fight would be an offence. If found guilty of this offence, a person convicted by the District Court may have to pay a fine up to €1,000 and/or have to serve a prison sentence of up to 3 months.220 1.5 Failure to comply with the direction of the Gardaí Where the Gardaí suspects that a person has committed one of the offences already mentioned or is loitering in a public place so as to give rise to a reasonable apprehension for the safety of persons or property, a Garda may direct the person to do either or both of the following: a) Desist from acting in such a manner (e.g. desist from loitering or from shouting outside a house at 2am); b) Leave the area immediately in an orderly manner.221 Failure to comply with such a direction constitutes a summary offence and will be heard in the District Court where a conviction will result in a fine of up to €1,000 and/or a prison sentence of up to 6 months.222

213 214 215 216 217 218 219 220 221 222 211 212

Criminal Justice (Public Order) Act 1994, s 23B(4) as amended by Criminal Justice Act 2006, s 184. Criminal Justice (Public Order) Act 1994, s 5. Criminal Justice (Public Order) Act 1994, s 5(3). Criminal Justice (Public Order) Act 1994, s 23A(5) as amended by s. 184 of the Criminal Justice Act 2006. Criminal Justice (Public Order) Act 1994, s 5 as amended by the Intoxicating Liquor Act 2008, s. 22. Criminal Justice (Public Order) Act 1994, s 23A(2) as amended by s. 184 Criminal Justice Act 2006. Criminal Justice (Public Order) Act 1994, s 23A(4) as amended by s. 183 Criminal Justice Act. Criminal Justice (Public Order) Act 1994, 23A(3) as amended by, Criminal Justice Act 2006 s 184. Criminal Justice (Public Order) Act 1994, s 6. Criminal Justice (Public Order) Act 1994, s 6(2) as amended by the Intoxicating Liquor Act 2008, s 22. Criminal Justice (Public Order) Act 1994, s 8(1). Criminal Justice (Public Order) Act 1994, s 8(2) as amended by the Intoxicating Liquor Act, s 22.

gardaí powers of stop and search | 37

gardaí powers of stop and search Thomas Kelly

1. introduction A member of An Garda Síochana can ask to stop and search you. All that is required is your consent. If you refuse, the Gardaí have no right to stop or search you save for where they are given the power under statute or common law. Generally, the Gardaí have the right to stop and search you or your vehicle if they have a reasonable suspicion that you have committed or are about to commit an offence.

2. vehicles The Gardaí are given various powers under common and statute law which allow them to stop your vehicle at almost any time. One should stop your vehicle whenever asked by a Gardaí as you can always challenge their authority to stop you at a later stage. The Gardaí have common law powers to stop motorists for the purpose of detecting and preventing crime where there exists a ‘reasonable suspicion’ that a crime has occurred or is likely to occur.223 While this is a controversial area, it remains good law.224 This includes situations such as if the Gardaí suspect you of drink driving or if you are driving through an area where a lot of crime has been committed. You are under a statutory obligation when driving in a public place to stop your vehicle when required by a member of the Garda Siochana. Failure to do so is an offence.225 The amended Road Traffic Act 1961 gives the Gardaí the power to stop your vehicle for the purpose of inspecting vehicle tax, insurance certificates, driving licenses and road worthiness of vehicles. Unlike the common law power, it is confined to road traffic offences. The Gardaí may search your vehicle with your consent or where they have obtained a warrant to search your vehicle. They may also do so without a warrant and without your consent should they suspect with reasonable cause that you have committed or are about to commit an offence.226 Should the Gardaí proceed without your consent, you are entitled to know on what legal grounds they are basing their search.227

3. persons The Gardaí can ask you to stop at any time and can search you with your consent. The Gardaí require a warrant in order to search your person without your consent. However, the Gardaí have statutory powers to stop and search your person without your consent and without a warrant when they have a reasonable suspicion that you have committed or are about to commit an offence.228 These offences include – among other things – public intoxication, threatening or abusive behaviour, disorderly conduct229 or possession of illegal substances.230 The Gardaí can demand you give your name and address should they suspect, with reasonable cause, that you have committed an offence under the Criminal Justice (Public Order) Act 1994. Failure to do so is an offence.231 If a number of persons are gathered in one area and the Gardaí have reasonable grounds to believe a breach of the peace has occurred or will occur or should they suspect someone has an offensive weapon they can search anyone in that area in order to find it.232

225 226 227 228 229 230 231 232 223 224

DPP v Fagan [1994] 2 IR 265. M Forde and D Leonard, Constitutional law of Ireland (3rd edn, Bloomsbury Professional 2013) 388. Road traffic Act 1961, s 109. Misuse of Drugs Act 1977, s 23; Offences Against the State Act 1939, s 30; Dublin Police Act 1842, s 29. DPP v Laide [2005] IR 209. Eshwarprasadh Kessopersadh & Anor v. Gearoid Keating & Ors [2013] IEHC 317; Criminal Justice (Public Order) Act 1994, ss. 4, 5, 7, 8, 9, 11, 13. Criminal Justice (Public Order) Act 1994, ss 4, 5 and 6. Misuse of Drugs Act 1977, s 23. Criminal Justice (Public Order) Act 1994, s 24. Firearms and Offensive Weapons Act 1990, s 16.

38 | chapter 4 students and the justice system

rights in custody and detention Sophie MacCionnaith

1. introduction From the outset, it is important to draw the distinction between an arrest which is the initial taking into custody, and detention, which is the continued deprivation of personal liberty for a specific or indefinite period.

2. period of detention 2.1 What offences can a person be detained for? (i) Common law powers of detention In the absence of statutory powers of arrest and detention, the Gardaí have common law powers of arrest and detention233 as part of their common law duty “to detect and prevent crime”.234 Neither common law nor statutory powers of arrest can be used in order to hold persons against their will for reasons other than to charge them with an offence. Generally, it is unlawful to detain a person simply for the purpose of questioning.235 (ii) Statutory powers of detention Section 4 of the Criminal Justice Act 1984 (the 1984 Act) provides for detention for any offence for which an adult may be punished by imprisonment for a term of five years or more. The Criminal Justice Act 1999 and the Offences Against the State Act 1939 provides for a period of detention in relation to a number of offences,236 including the withholding of information which might be of material assistance in preventing the commission or an offence or in securing a prosecution or conviction.237 The 1939 Act as well as the Criminal Justice (Drug Trafficking) Act 1996 and the Criminal Justice Act 2007 also provide for detention for more serious offences such as drug trafficking,238 murder and offences involving a firearm.239 2.2 How long can the Gardaí detain a person for? Under Irish law, there is a recognised constitutional right to personal liberty.240 Detention can only take place after arrest. If a person is not under arrest, they can leave the Garda Station or wherever they might be.

235 236 237 238 239 240 233 234

DPP (Stratford) v Fagan [1994] IR 265, at least where drink-driving offences are concerned. DPP (Stratford) v Fagan [1994] IR 265, per Blayney J at 274.. Micheal Forde and David Leonard, Constitutional Law of Ireland (3rd edn, Bloomsbury 2013) at 353. Criminal Justice Act 1999, s. 42; Offences Against the State Act 1939, s30(1). Offences Against the State (Amendment) Act 1998, s. 9(1). Criminal Justice (Drug Trafficking) Act 1996, s. 2(1). Criminal Justice Act 2007, s. 50(1). For a full list of offences for which a detention period is provided, see <http://www.citizensinformation.ie/en/justice/arrests/detention_after_arrest.html> accessed 6 February 2014. Irish Constitution, Article 44.4.

rights in custody and detention | 39

(i) Periods of detention under statutory powers of detention241 Section 4 CJA 1984

Section 42 CJA 1999

Section 30 1939 Act

Section 2 Act 1996

Section 50 CJA 2007

Initial Period

24 h

1st extension authorised by superintendent

24 h *

18 h *

18 h

2nd Extension authorised by Chief Superintendent

12 h

24 h

72 h

48 h

(168h) 7 days

1st extension authorised by DC or CC

24 h **

2nd authorisation authorised by DC or CC Total

24 h

(72 h) 3 days

* First extension must be authorised by a Garda Chief Superintendent (or higher rank). ** The extension is authorised by the District Court following application by a Garda Superintendent. 2.3 Does the clock stop at any time during detention? If a person is taken from the Garda station to a hospital or other suitable place for medical attention, any period of absence from the Garda station is not taken into account.242 Under the 1984 Act, if questioning is suspended for a period of time between midnight and 8am then this period is not counted.243 Where a person’s period of detention would end while they are at the venue where an application is being made by the Gardaí for a further detention period, it is considered not to end until the final decision of the court on the application.244 If the Gardaí no longer have any grounds for believing that a person’s detention is necessary or their detention period has expired, that person must be either charged with the offence or released from custody.245

3. rights in detention

3.1 Right to legal advice There is a constitutional right of reasonable access to a solicitor while detained in custody.246 The Gardaí must do what is reasonable to contact solicitor if the person detained requests one.247 While there is some doubt as to whether there is a constitutional right to be informed of the right to consult a solicitor, a statutory right exists under section 5(1) of the 1984 Act and section 30 of the Offences Against the State Act 1939 which provide that an arrested person must be informed of his or her entitlement to consult a solicitor and to have a solicitor and one other person notified of their detention. Further, an arrested person shall be informed without delay of this entitlement to consult a solicitor.248 There is, however, no entitlement to have a solicitor present during questioning.249 Gardaí may only question a person in custody prior to the arrival of their solicitor if there is inordinate delay on the part of the solicitor in arriving.250

Table: http://www.citizensinformation.ie/en/justice/arrests/detention_after_arrest.html> accessed 6 February 2014. 242 Criminal Justice Act 1984, s4(8). 243 Under s. 4(6)(a) the Criminal Justice Act 1984, notice should be given in writing to the person detained and the later should consent in writing. 244 Criminal Justice Act 2007, s50(2). 245 Criminal Justice Act 1984, s4(4); Criminal Justice (Drug Trafficking) Act 1996, s2(5); Criminal Justice Act 1999, s42(5); Criminal Justice Act 2007, s50(6). 246 People (DPP) v. Healy [1990] ILRM 313. 247 People (DPP) v. Buck [2002] 2 ILRM 454. 248 Treatment of Persons in Custody in Garada Síochána Stations Regulations 1987, SI 1987/8(1)(b). 249 Lavery v. Member in Charge, Carrickmacross Garda Station [1999] 2 IR 390. 250 DPP. v. Gormley, DPP v. White [2014] IESC 17 at para 9. 241

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3.2 Right to silence There is a constitutional right to silence under Irish law deriving from article 40.6.1 of the Constitution. It is unconstitutional to cross-examine an accused about the reasons for remaining silent while in custody, at least in the absence of an express statutory provision curtailing the right to silence in such circumstances.251 Evidence obtained pursuant to statutory demand is inadmissible at a subsequent criminal trial.252 Under the Judges’ Rules of 1922,253 a Garda officer should administer a ‘caution’ before charging someone or questioning a person being held in custody.254 The caution states “You are not obliged to say anything unless you wish to do so but anything you say may be taken down in writing and may be used in evidence”.255 The right to silence in custody is not absolute. Under Section 52 of the Offences against the State Act 1939 (the 1939 Act), a person detained under section 30 of the 1939 Act must answer, if asked by a Garda, certain questions concerning their movements and actions and their knowledge concerning the commission of any offence under the 1939 Act.256 Before requesting this information, the Garda must inform the person that the request is being made under section 52 of the 1939 Act. That person must then be informed that a failure or refusal to answer will result in them committing an offence.257 3.3 Treatment of persons in custody – the 1987 regulations The following rules as to the treatment of persons in custody have been laid down in the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Síochána Stations), Regulations 1987.258 a) The Regulations provide for a reasonable right of private access to a chosen solicitor.259 b) The interviews must be ‘fair & humane’.260 c) There must not be more than two Gardaí questioning a person simultaneously and not more than four Gardaí present at the one time.261 d) The interviews must not last more than 4 hours without a break.262 e) The 1984 Act provides for the recording of interviews by electronic or other similar means at Garda stations or elsewhere in connection with investigation of offences.263 Regulations implementing these statutory provisions have been laid in the Criminal Justice Act, 1984 (Electronic Recording of Interviews) Regulations 1997. f ) If a person is deaf or there is doubt about their hearing ability, they cannot be questioned without an interpreter, if one is reasonably available, unless they give their written consent.264 g) Where a person is drunk or under the influence of drugs, they cannot be questioned while in that condition except with the exceptional permission of the member in charge of the Garda station.265 h) Where a person, while being interviewed, makes a complaint to a Garda in relation to their treatment in custody, the Garda must notify the member in charge of the station, if he or she is not present at the interview, and record it.266

253 254 255 256 257 258 259 260 261 262 263 264 265 266 251 252

DPP v. Finnerty [1994] 4 IR 364. Re National Irish Bank [1999] 3 IR 145. Judges’ Rules of 1922, contained in O’Malley, The Criminal Process (2009). Forde and Leonard, Constitutional Law of Ireland (n 3) 489. People v Farrell [1978] 1 IR 13 at 21, per O’Higgins CJ: these rules are ‘not rules of law [but] rules for the guidance of persons taking statements’, cited by Forde and Leonard in Constitutional Law of Ireland (n 3) 489. Offences against the State Act 1939, s 52(1). Offences against the State Act 1939, s52(2). Treatment of Persons in Custody in Garada Síochána Stations Regulations 1987, SI 1987/119. Regulation 11(1). Regulation 12(2). Regulation 12(3). Regulation 12(4). Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations), s27(1). Regulation 8. Regulation 9. Regulation 10.

rights in custody and detention | 41

i) A person under 18 years of age cannot be questioned unless a parent or guardian is present.267 j) If it is not possible that the parent or guardian of the minor come to the interview, the member in charge of the station must, unless it is not practical to do so, arrange for the minor’s other parent, another guardian, an adult relative or some other responsible person other than a Garda to attend.268 k) The member in charge may exclude the minor’s parent or guardian from the interview if:269 (i) They are the victim of the offence being investigated; (ii) They have been arrested in relation to the offence or are a suspect; (iii) The member in charge has reasonable grounds for believing that they would obstruct the course of justice if they were at the interview.

4. conclusion Section 4 of the 1984 Act provides a general power of detention for offences for which a sentence of imprisonment five years or more may be imposed. The Offences Against the State Act 1939, the Criminal Justice (Drug Trafficking) Act 1996 and the Criminal Justice Act 2007 provide for detention for more specific and more serious offences. The period for which one can be detained will depend on the offence charged. A person has certain rights while in detention, including the right to legal advice and the right silence, and those in detention ought to be treated in accordance with the rules under the 1987 Regulations.

269 267 268

Regulation 13(1). Regulation 13(2). Regulation 13(1).

chapter 5 employment law employment: contracts, wages and deductions Brian Kelleher

1. introduction If a person receives a regular wage or salary from another in exchange for working under the direction of that other person, that person usually has a contract of employment. Contracts of employment can be both written and oral, but employers are required by statute to provide their employees with a written statement of terms within two months of the beginning of their employment.270 This statement does not constitute a contract of employment in itself. The employee is under no obligation to sign it. However, it is often the case that the employer and employee will agree that the statement of particulars should amount to a contract of employment. In addition to the express terms of the contract required by statute,271 employers may opt to add in other terms. The contract may also refer to separate documentation containing other terms (e.g. staff manuals, safety protocols etc.). This is neither prohibited nor mandated for by legislation, and is instead governed by contract law. Additionally, a contract of employment will also contain ‘implied terms’, i.e. terms deemed by the courts to be present in the contract without actually being in writing. Express terms will prevail over implied terms except where the terms have been implied into the contract by statute or by the Constitution (e.g. the equal right of men and women to work).272

2. variation of the contract of employment

Under the rules of contract law, neither the employer nor the employee can unilaterally alter the contract for employment. For the contract of employment to be lawfully altered, two elements must be present – acceptance and consideration. 2.1 Acceptance Acceptance can be express or implied. With regard to implied terms, a court can infer acceptance from a failure to protest,273 although this can be explained by other means. For instance, where the change has not yet been implemented a failure to protest will not be construed as acceptance.274 Generally speaking, a court will only infer implicit acceptance where it is the ‘only explanation’ for the employee’s actions.275 2.2 Consideration In order for an alteration to the contract of employment to occur, one party must receive valid consideration in exchange for granting variation to the other party. For example, in the case Kenny v An Post,276 the High Court ruled that the unilateral removal of a 15-minute break did not constitute a breach of contract, as the employees had provided nothing in return for this concession. If a detriment, e.g. a pay cut, is sustained by employees, consideration can be the fact that the employer kept those employees on the payroll. Those employees gained a ‘practical benefit’ in that they kept their jobs where

272 273 274 275 276 270 271

Terms of Employment (Information) Act 1994, s 3. Terms of Employment (Information) Act 1994, s 3. Irish Constitution, Ar 45 (2)(i); Murtagh Properties Ltd. v Cleary [1972] IR 330. Solectron Scotland v Roper [2004] IRLR 4. Jones v. Associated Tunneling [1981] IRLR 477. Khatri v CCH [2010] IRLR 715. [1988] IR 285.

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otherwise they might have lost them.277 Conversely, if the employees are promised a benefit, e.g. a bonus, that their employer may wish to renege upon, the employees can claim that their employer received a ‘practical benefit’ in return for the variation in the form of a more incentivised workforce.278 In addition to the above, an employer must also comply with Section 5 of the Terms of Employment (Information) Act 1994, which requires the employer to furnish a statement of particulars to the employee containing the changes. If the employer fails to do so, they can be liable for damages.279

3. role of third parties in variation of contract A trade union (or other third party) can be an agent of the employee,280 but it is not an agent per se. Essentially, while an employee has the ability to delegate such negotiating responsibilities to a trade union, they are not automatically bound by all or any of the agreement reached by the trade union. For instance, in the case of Goulding’s Chemicals v. Bolger,281 the Supreme Court ruled that a group of dissenting union members could not be forced to accept the terms negotiated by the unions. The rationale behind this was that to give trade unions such absolute power of agency over all its members would prejudice their dissenting members. Additionally, the dissenting employees had objected to those terms throughout the process, so they could not be held to have accepted by acquiescence or failure to protest (as outlined above).

4. wages and deductions 4.1 Background In 1991, the Payment of Wages Act 1991 (the 1991 Act) was introduced and three basic rights were enshrined therein: a) The right of every employee to a readily negotiable mode of wage payment; b) The right of every employee to protection against lawful deductions; c) The right of every employee to a written statement of wages and any deductions therefrom. These rights were subject to no qualifying period of service or minimum hours thresholds. The Payment of Wages Act 1979 allows employers to pay wages otherwise than in cash with the agreement of the employees. 4.2 The minimum wage Section 14 of the National Minimum Wage Act 2000 (the 2000 Act) sets out the minimum hourly rate of pay for an employee, who is 18 years of age and over, at €8.65 per hour, and for an employee under the age of 18, the minimum hourly rate of pay is €6.06 (or 70% of the national minimum wage). Section 15 of the 2000 Act lays down sub-minimum rates of pay for employees who enter employment for the first time after attaining 18 years of age (or those who entered employment before turning 18 and continued in employment after attaining that age). These rates are: a) 80% of the national minimum wage for the first year of employment (€6.92/hour). b) 90% of the national minimum wage for the second year of employment (€7.79/hour). Section 16 of the Act lays down sub-minimum rates for employees who undergo a course of study or training authorised by the employer. These rates are as follows: a) 75% of the national minimum wage for the first period in the course (€6.49/hour); b) 80% of the national minimum wage for the second period (€6.92/hour); and c) 90% of the national minimum wage for the third period (€7.79/hour).

279 280 281 277 278

Pearson v. Army Facilities EAT (EW), 11 July 1997. Attrill v. Dresder Kleinworth [2012] IRLR 553. O’Hanlon v. Douglas TE20/2005. O’Rourke v. Talbot [1984] ILRM 562. [1977] IR 211.

working time, holidays and working conditions | 45

The National Minimum Wage Act 2000 (Prescribed Courses of Study or Training) Regulations 2000 (S.I. No. 99 of 2000) lay down further conditions that must be satisfied in order to avail of these sub-minimum rates. 4.3 Lawful deductions Lawful deductions from wages came into existence as a common law doctrine. However, this was regulated by Section 5 of the 1991 Act, which in turn imposed further conditions on lawfully making a deduction from wages. In essence, Section 5(2) lays down six conditions:282 a) The power to deduct must be pre-authorised in the terms of the contract; b) The amount deducted must be ‘fair and reasonable’; c) The employee must have notice of the term; d) Particulars of the act or omission giving rise to the deduction must be supplied; e) The amount must be ‘fair and reasonable’, and not exceed the cost of the loss or damage or cost to the employer; f ) The deduction must be made within 6 months. In addition to lawful deductions made by the employer in line with the requirements set out by Section 5(2), other deductions can be required by statute (e.g. PAYE, PRSI, USC etc.). 4.4 Appealing deductions There are a number of potential issues surrounding deductions, including questions as to what exactly is meant by terms such as ‘fair and reasonable’ used in the 1991 Act. For instance, the courts have ruled that an employee’s means must be taken into account when assessing what exactly would constitute a ‘fair and reasonable’ deduction.283 The courts have also ruled strongly in favour of strict adherence to the statutory requirements. Breach of contract on the part of the employee does not entitle the employer to disregard the statutory requirements and make an unauthorised deduction.284

working time, holidays and working conditions Eimear Delargy

1. working time Under section 15 of the Organisation of Working Time Act 1997 (the 1997 Act), an employee must not work over 48 hours in a week. This consists of any time the employee is at his or her place of work or at his or her employer’s disposal and carrying out the activities of his or her work. The employee can opt out of this, if they wish. The 1997 Act does not apply to people who: a) Work at sea, b) Live-in relatives of the employer working in the employer’s home, c) Those who determine their own working time. Under section 11 of the 1997 Act, employees must receive a daily rest period of 11 consecutive hours. Under section 12 of the act, a break must be provided to an employee who has worked in excess of 6 hours in a working day. There must be a 15 minute break every 4.5 hours and 30 minutes break time every 6 hours. These breaks can either be taken separately or together. These breaks cannot commence at the beginning or at the end of the working day. There is no provision as to payment during these break periods.

284 282 283

Set out in full in the National Minimum Wage Act 2000, s 5(2). Lynch v. Clondara Wholesalers PW 3/98. Grimes v. Iarnróid Éireann PW 3/9.

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1.1 Weekly rest Section 13 of the 1997 Act provides for an optimal continuous period of 35 hours rest in every working week. This may be reduced to 24 hours where the considerations are of a technical or organisational nature or where the employer can justify doing so. The 35 hour rest period is combined with the 24 hour weekly rest period and the 11 hour daily period. An employer can require the employee work for seven days straight; however, the employee must be compensated with two rest periods within the next seven days. 1.2 Annual leave and public holidays At common law there is no implied term as to holidays and there are no right to paid holidays. However, under section 19 of the 1997 Act an employee is entitled to the following amounts of annual leave: a) Four working weeks for those working 1,365 hours a year, b) 1/3 of a working week for every month consisting of 117 hours, or c) 8% of hours worked of a maximum of four weeks (part-time workers). Section 20 of the 1997 Act provides that it is for the employer and not the employee to nominate when annual leave should be given. However, certain factors should be taken into account, e.g. family responsibilities and to take available opportunities for rest and recreation. It is generally impermissible to designate Saturdays and Sundays as holidays. The act recognises that payment must be made at a rate which is proportional to the weekly rate. Overtime is excluded from calculating annual leave. 1.3 Public holidays There are 9 public holidays recognized under the 1997 Act: a) Christmas Day, b) St. Stephen’s Day, c) St. Patrick’s Day, d) Easter Monday, e) The first Monday of May, f ) The first Monday in June, g) The first Monday in August, h) The last Monday in October, i) The first day of January. A public holiday is not an entitlement to a day-off; however, it is an entitlement to be compensated where the employer requires the employee to work on a public holiday. Section 21 of the 1997 Act requires that an employee receive a paid day off or a day’s pay in lieu. The day off or a day’s pay in lieu must be paid within one month of the public holiday, or alternatively an additional day may be given to annual leave. This entitlement is limited to those employees who have worked at least 40 hours in the previous 5 weeks. The employee may request a day off, a day in lieu, or a day’s pay in lieu but must not do so not later than twenty one days prior to the public holiday. The employer must respond within fourteen days of the public holiday. If the employer does not, the employee is automatically entitled to a paid day off. 1.4 Sunday premium Section 14 of the 1997 Act provides that where an employee works on a Sunday, they must be compensated. This does not apply if the work has already been taken into account in determination of the wages. This Sunday premium may take the form of an allowance, a salary increase or paid time off.

2. harassment/bullying

The Employment Equality Acts 1998-2011 place an obligation on all employers to prevent harassment in the workplace on grounds of gender, civil status, family status, sexual orientation, age, disability, race, religious belief or membership of the Traveller Community. A victim is entitled to bring a claim to the Equality Tribunal and your employer may be obliged to pay compensation. More information of the Equality Tribunal can be found in the section on the Equality Appeals Tribunal of this handbook. It is also the duty of the employer to ensure that bullying or harassment does not occur in the workplace and to establish procedures for dealing with complaints.

resignation, continuance of a fixed term contract and minimum notice periods | 47

3. maternity Under section 18 of the Maternity Protection Act 1994 where, as a result of a risk assessment, it is not technically or objectively feasible either to adjust the employee’s work or to move the employee, the employee must be granted leave from her employment.

resignation, continuance of a fixed term contract and minimum notice periods Lauren Flanagan

1. resignation Resignation is a unilateral act carried out by the employee which will, if sufficiently clear and precise, bring about an end to a contract of employment. 1.1. How to resign When an employee wishes to resign from their job, they are required by law to give notice to their employer. In some cases a detailed contract of employment may have been drawn up and signed before the commencement of the employment relationship. These contracts often set out the main terms and conditions, which will govern the relationship during the course of their employment. If a person has signed such a document, it is important to check for any additional requirements that may have been laid down regarding resignation. It is critical to check this, as for a resignation to be valid, all requirements must be complied with.

1.2 Notice periods Once notice of resignation has been handed in, the employee must work out their notice period, as stipulated in their contract. If no contract exists then section 6 of the Minimum Notice and Terms of Employment Act 1973 will apply, stating that those employed for 13 weeks or more must give the employer the statutory minimum notice period of one week. Employees who are not governed by contracts and who have worked less than thirteen weeks are not required to give in notice. Employees are entitled to be paid during the notice period.285 1.3 Can notice be withdrawn? Once notice has been handed into the employer, it cannot be revoked unless some form of an agreement has been reached between both parties. 1.4 Can notice of resignation be rejected? As long as the employee has followed the proper procedure as laid down in their contract or by statute in relation to minimum notice periods, the resignation will be valid and the employer will not be able to refuse notice. 1.5 Checklist for valid resignation For a resignation to be valid: a) Check to see if a contract has been signed. If so, make sure to read the terms and conditions relating to resignation. b) Give verbal or written notice of intention to resign. c) Make sure to check the period of notice outlined in the contract and continue in employment until this period has expired. d) If there is no contract, give a weeks’ notice and continue working until this has expired.

285

Minimum Notice and Terms of Employment Act 1973, Second Schedule, s 5.

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2. continuance of a fixed term contract Most forms of employment contracts tend to be open-ended. This means that employment will continue indefinitely until such a time as a positive action is taken to end it, such as termination or resignation. However, this is not the case with fixed term work. A fixed term employee’s contract is limited and will end on a specific date or when a certain event occurs. Filling in for someone away on maternity leave would be an example of fixed term work, as the employment will come to an end due to a specific event i.e. when the original employee returns. 2.1 Can fixed term contracts be renewed? Fixed term contracts can be renewed; however, there are limits on the number of times an employer can do this. Prior to 14th July 2003 if an employee has completed three years of continuous service as a fixed term worker, the contract may only be renewed one more time for a period not exceeding one year. If fixed term employment was entered into after July 2003, the contract may be renewed two times or more however, the total duration of the contracts must not exceed four years. This is outlined in Section 9 of the Protection of Employees (Fixed -Term Work) Act 2003 (the 2003 Act). If a fixed term contract comes to an end and the employer does not renew it, they are normally not under any obligation to give any reason for this as the contract will only provide work for certain duration of time. If the contract expires or a certain event or task has been completed then there is no need for the employer to give a reason for non-renewal. Sometimes however, fixed term contracts are used to cover up an employment relationship that is in effect an indefinite contract, to get around certain obligations that the employer may owe. Section 9 of the 2003 Act was specifically introduced to combat this practice. Therefore, if a fixed term contract has continued over four years, then as deemed by the 2003 Act the contract shall be one of indefinite duration. If this is the case, then the employer may not end the contract based on the pretence that it is a fixed term contract as it is clear that this contravenes the 2003 Act and so the employer must continue with the contract of indefinite duration until termination or resignation takes place.

3. minimum notice periods When an employer intends to terminate a contract of employment, a minimum period of notice must be given to the employee, as laid down in Section 4 of the Minimum Notice and Terms of Employment Act, 1973 (the 1973 Act). The amount of time contained in the notice period will depend on the length of time an employee has worked for the employer. This table lays out the minimum periods that are required as laid down in Section 4(2) of the 1973 Act. However such periods are only the minimum required by statute and may be extended by the employer.286 length of service (must be continued)

minimum notice periods

Thirteen weeks to just under two years

One week

Two years to just under five years

Two weeks

Five years to just under ten years

Four weeks

Ten years to just under fifteen years

Six weeks

More than fifteen years

Eight weeks

It must be noted however that those who have been in employment for less than thirteen weeks will not be given a notice period. 287

286 287

Forde and Byrne, Employment Law, (3rd edn Round Hall 2009) 244. ‘Ending the Employment Relationship’, (Workplace Relations) <http://www.workplacerelations.ie/en/What_ You_Should_Know/Ending_the_Employment_Relationship/> Last accessed 1st February 2014.

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work permits Laura Byrne

1. background In general non-EEA nationals must have a work permit to work in Ireland. EEA and Swiss nationals do not need an employment permit. The EEA (European Economic Area) consists of the EU member states together with Norway, Iceland and Liechtenstein.288 There are two main Acts dealing with this area: the Employment Permits Acts 2003; and the Employment Permits Act 2006, (the Employment Permits Acts). These Acts list four types of employment permits that are available; work permits, green card permits, spousal/dependant work permits, and intra-company transfer permits. This section will deal with work permits.

2. main features A Work Permit may be granted for those occupations with a salary of €30,000 (excluding bonuses).289 There are certain job categories which are ineligible for a work permit and this list is published by the Department of Enterprise Trade and Employment.290

3. occupations which are ineligible for work permits The Minister, when issuing work permits, can have regard to certain categories of employment.291 As a result, work permits are not available to the following categories since April 10 2013: a) All clerical and administrative positions, b) All operatives/labourers, c) All operator and production staff, d) All retail sales vacancies, sales representatives and supervisory or specialist sales staff, e) All drivers (excluding HGV), f ) Nursery/crèche workers, g) Child minder/nannies, h) Hotel, tourism and catering staff except chefs, i) Craft workers and apprentice/trainee craft workers.

4. labour market needs test Unlike the Green Card Scheme, the employer must satisfy a labour market needs test prior to submitting an application for a work permit. In practice, this test requires the employee to advertise the position on the FÁS/EURES employment network for a period of at least four weeks and also in a national newspaper for at least three days to ensure that, in the first instance, an EEA national cannot be sourced to fill the vacancy. Evidence that this requirement is complied with must be included with the application. There is no requirement to submit a job offer as required by a green card application. A completed application form in itself is sufficient. If the employer has been unable to find an EEA or Swiss national, they must contact their local employment services office within four weeks.

5. ratio of eea/non-eea nationals A work permit will not be granted to companies where a consequence of granting the employment permit would be that more than 50% of employees in the firm would be non-EEA nationals.292 There is no difference between the employment permit granted on foot of an employer or employee application.

290 291 292 288 289

Employment Permits Act 2006, s 10(2). Employment Permits Act 2006, s 12 (1)(j). Employment Permits Act 2006, s 4(1). Employment Permits Acts 2006, s 14(1)(c). Employment Permits Acts 2006, s 10(1).

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6. fees and duration Once issued, a work permit entitles the employee to work in the state with that particular employer in the occupation specified on the permit.293 It is issued for an initial period of two years and can be renewed for a further three years. After five years, the work permit can be renewed indefinitely. A fee of â&#x201A;Ź1,000 is payable for a two year work permit and â&#x201A;Ź1,500 for a three year work permit. It is expected that when a work permit is issued in the state, the employee is expected to stay with the initial employer for a period of 12 months but then may move employer, provided a new application for a work permit is made.294 Once the individual is legally resident in the state they are entitled to bring their family to Ireland.

7. policy on unlimited work permits An unlimited work permit is issued at the fifth renewal stage or after five years continuous service if an employee has been employed by the same employer.295 An unlimited permit has a start date but no expiry date and it entitles the employee to work for a specified employer for an unlimited period without the need to renew their permit yearly. In the event that the employee changes employment then a new permit application must be made on their behalf.296 If an employee qualifies for an unlimited work permit, this should be specified when submitting the application form.297 There is no charge for an unlimited work permit.

8. situations where a work permit is not necessary According to the Department of Jobs, Enterprise and Innovation a non-EEA national will not require a work permit where:298 a) They have permission to remain as the spouse, civil partner or dependant of an Irish or EEA national, b) They are a Swiss national, c) They have been granted refugee status â&#x20AC;&#x201C; whether through the normal process or as a programme refugee, d) They have been granted leave to remain on humanitarian grounds, having been in the asylum process, e) They have specific immigration permission to live and work in Ireland,299 f ) They have been granted leave to remain as the parent of an Irish citizen, g) They have permission to set up a business in Ireland, h) They are a registered student.

9. refusal of work permits A work permit may be denied in certain circumstances, such as where an individual: a) Has entered the state for a reason other than to work, for example as a tourist, b) Is in the state illegally or is no longer complying with the conditions of admission, c) Has been asked by the Department of Justice and Equality to leave the state, d) Is in the process of being deported, e) Is seeking employment with a non-European Economic Area/Swiss employer who is operating in the state without business permission from the Minister for Justice and Equality.300

Employment Permits Acts 2006, s 20(2). www.djei.ie/labour/workpermits/changingemployer.htm. 295 http://www.entemp.ie/labour/workpermits/elements.unlimited.htm 296 http://www.djei./labour/workpermits/changingemployer.htm 297 Employment Permits Acts, s 6(f )(ii). 298 http://www.djei.ie/labour/workpermits/whoneedsapermit.htm accessed 28/03/2014. 299 http://www.inis.gov.ie/en/INIS/Pages/Policy%20for%205%20year%20workers%20and%20redundant%20 workers. 300 Employment Permits Act 2006. 293 294

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10. students It is a primary condition of entry into the state for students that they are in a position to provide financially for themselves while studying. Students given permission to remain in Ireland for study will not be given permission to work (defined as up to 20 hours part time work per year or full time work during holiday periods) unless they are attending a full-time course of at least a year leading to a recognised qualification. Non-EEA students who have graduated with a level seven degree may be permitted to remain in Ireland for six months and those with a level eight or higher degree may be permitted to remain for twelve months. The third level graduate scheme will allow them to find employment and apply for a work permit or green card permit.301 During this six month period they may work full time. They must be legally resident in Ireland and should apply for this extension of their student permission to their local immigration registration office.

health and safety in the work place Laura Byrne

1. background The main legislation providing for the health and safety of people in the workplace is the Safety, Health and Welfare at Work Act 2005 (the 2005 Act).302 The 2005 Act consolidates and updates the Safety, Health and Welfare Act 1989. It applies to all employers, employees (including fixed term and temporary employees) and self-employed people in their work places. The 2005 Act sets out the rights and obligations of both employers and employees and provides for substantial fines and penalties for breaches of the legislation.

2. employers duties Under section 8 of the 2005 Act the employer has a duty to provide for their employeesâ&#x20AC;&#x2122; safety, health and welfare at work as far as reasonably practicable. In order to prevent workplace injuries and ill health the employer is required among other things to: a) Provide and maintain a safe workplace.303 b) Prevent risks from the use of any article or substance or the exposure to noise or vibration or radiation or any other physical agent.304 c) Prevent any improper conduct or behaviour likely to put the safety, health and welfare of employees at risk.305 d) Provide instruction and training to employees on health and safety.306 e) Provide protective clothing and equipment to employees.307 f ) Appoint a competent person as the organisationâ&#x20AC;&#x2122;s safety officer.308

http://www.djei.ie/labour/workpermits/graduates.htm. In conjunction with the regulations laid down in the Safety Health and Welfare at work (General Application) Regulations 2007. 303 Safety Health and Welfare at Work Act 2005, s 8(2)(c)(iii). 304 Safety Health and Welfare at Work Act 2005, s 8(2)(d). 305 Safety health and Welfare at Work Act 2005, s 8(2)(b). 306 Safety Health and Welfare at Work Act 2005, s 8 (2)(g). 307 Safety Health and Welfare at Work Act 2005, s 8 (2)(i). 308 Safety Health and Welfare at Work Act 2005, s 18. 301 302

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3. employees duties The duties of employees while at work are outlined in section 13: a) To take reasonable care to protect the health and safety of themselves and of other people in the workplace.309 b) Not to engage in improper behaviour that will endanger themselves or others.310 c) Not to be under the influence of drink or drugs in the workplace.311 d) To undergo any reasonable medical or other assessment if requested to so by the employer.312 e) To report any defects in the place of work or equipment that might be a danger to health and safety.313

4. risk assessment and safety assessment Under the Safety Health and Welfare Act 2005 every employer is required to carry out a risk assessment for the workplace which should identify any hazards present in the workplace, assess the risks arising from such hazards, and identify the steps to be taken to deal with any risks.314 Once a risk assessment has taken place, the employer shall then take steps to implement any improvement considered necessary relating to the safety, health and welfare at work of employees and to ensure that any such improvement is implemented in respect of all activities and levels of the place of work.315

5. protective equipment and measures The employer should tell employees about any risks that require the wearing of protective equipment. The employer should provide protective equipment (such as protective clothing, headgear, footwear etc.) together with training on how to use it, where necessary. An employee is under a duty to take reasonable care for his/ her own safety and to use any protective equipment supplied. The protective equipment should be provided free of charge to employees if it is intended solely for use at the workplace only. Usually, employees should be provided with their own personal equipment.316

6. reporting accidents All accidents in the workplace should be reported to the employer, who should record the details of the incident. Reporting the accident will help to safeguard social welfare and other rights which may arise as a result of an occupational accident. An employer is obliged to report any accident that results in an employee missing three consecutive days at work (not including the day of the accident) to the Health and Safety Authority.

7. health and safety leave

An employer should carry out separate risk assessments in relation to pregnant employees. If there are particular risks to an employeeâ&#x20AC;&#x2122;s pregnancy, these should be either removed or the employee moved away from them. Under section 18 of the Maternity Protection Act 1994 if neither of these options is possible then the employee should be given health and safety leave from work, which may continue up to the beginning of the maternity leave. If a doctor certifies that night work would be unsuitable for a pregnant employee, the employee must be given alternative work or health and safety leave.

311 312 313 314 315 316 309 310

Safety, Health and Welfare Act 2005, s 13(1)(a). Safety, Health and Welfare Act 2005, s 13(1)(e). Safety, Health and Welfare Act 2005, s 13(1)(b) Safety, Health and Welfare Act 2005, s 13 (1)(c). Safety, Health and Welfare Act 2005, s 13 (1)(h)(ii). Safety, Health and Welfare Act 2005, s 19(1). Safety, Health and Welfare Act 2005, s 19(4). Safety, Health and Welfare Act 2005, s 9(b)(i).

national employment rights authority | 53

Following an employee’s return to work after maternity leave, if there are any risks to the employee because she has recently given birth or is breastfeeding, they should be removed. If this is not possible, the employee should be assigned alternative work, or else be given health and safety leave. Time spent on health and safety leave is treated as though the employee has been in employment and this time can be used to accumulate annual leave entitlement. The employee is not entitled to leave for any public holidays that occur during health and safety leave. During health and safety leave, employers must pay employees their normal wages for the first twenty one days (three weeks) after which health and safety benefit may be paid.

8. health and safety and young people An employer should carry out a separate risk assessment in relation to an employee less than 18 years of age. The risk assessment should be carried out before the young person is employed. If certain risks are present, including risks that cannot be recognised or avoided by the young person due to factors like lack of experience, then the young person should not be employed.

national employment rights authority Molly O’Casey

1. founding, purpose and function

The National Employment Rights Authority (NERA) is a statutory body established, as a consequence of ‘Towards 2016’, a social partnership agreement. It was established on an interim basis in February 2007, as an office of the Department of Enterprise, Trade and Employment. The aim of the NERA is to ensure compliance with and enforcement of employment rights legislation. The main functions of NERA are: a) The provision of information about employment, equality and industrial relations laws. b) The inspection of places of employment. c) The enforcement of employment law. d) The prosecution of employers who breach employment law. e) The protection of young persons in employment.317

2. procedure 2.1 Inspections Inspections by the NERA Inspection Services Unit are carried out: a) Routinely, b) After receiving a complaint,318 c) As part of a compliance campaign dealing with a new or particular development in an industry or piece of legislation.319 The NERA must conduct inspections in accordance with the NERA Inspection Manual and Code of Practice. Inspections may be ‘announced’ or ‘unannounced’. Inspectors do not need to share why an inspection is being carried out unless the inspection is within 6 months of a previous one. As employers are required by law to keep their employment records at their business premises, the inspection will occur on

<http://www.employmentrights.ie/en/Workplace_Relations_Bodies/National_Employment_Rights_Authority/ National_Employment_Rights_Authority_NERA_.html> accessed 28 March 2014. 318 Complaints may be filed by employees online at workplacerelations.ie. 319 Labour Court, ‘National Employment Rights Authority (NERA)’ (Workplace Relations ) <http://www. labourcourt.ie/en/Workplace_Relations_Bodies/National_Employment_Rights_Authority/> accessed 28 Janu ary 2014. 317

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those premises. Inspectors may enter premises at reasonable times. Firstly, the inspectors interview the employer. The inspectors may demand to inspect the employer’s records and make copies. They may interview with, and require information from, any relevant persons.320 2.2 Breach If there are no breaches, a letter is issued concluding the investigation. Where breaches of employment law have occurred, the breaches are explained and discussed with the employer. He/she is then given a deadline to correct the breaches. A letter is sent asking for evidence that the employer has amended the breaches. The employer is also warned that any further or new breaches will be sent to the Department’s legal services to be prosecuted. If there is no response or the response is inadequate, a second inspection is conducted. Where there is evidence of underpayment of wages, the inspector will calculate the underpayment for three years from the date of inspection and seek to have this paid as soon as possible.321 2.3 Prosecution Cases may be referred by the NERA Prosecution Services for prosecution where: a) The employer fails to rectify the matter. b) There are breaches of the Protection of Young Persons (Employment) Act, 1996. c) There are serious breaches of employment rights legislation. The NERA Prosecution Services Unit may refer cases to the Construction Industry Monitoring Agency (CIMA), the Construction Workers Pension Scheme (CWPS) and the Construction Industry Federation (CIF) for prosecution. A case may also be referred to the Chief State Solicitors Office so that it can be prosecuted in the courts. The Prosecution Services can share information with the Revenue Commissioners and the Department of Social Protection. 2.4 Enforcement The NERA Enforcement Services Unit can have a determination of the Labour Court or the Employment Appeal Tribunal enforced through the Courts Service in certain circumstances.322

3. development The Employment Law Compliance Bill which is currently going through the Oireachtas proposes to: a) Establish NERA on a statutory basis. b) Strengthen NERA’s inspection and enforcement powers. c) Enable NERA inspectors to enforce employment permits legislation. d) Increase possible penalties to up to €5,000 fine and/or 12 months imprisonment for summary

offences and up to €250,000 and/or 3 years imprisonment for indictable offences.323

Employer Resources, ‘The National Employment Rights Authority, Background’ (Employer Resourc es ) <http://www.erb.ie/Resources/Documents/National%2520Employment%2520Rights%2520Authority. doc&sa=U&ei=D8DmUtrtHKPwyQGcmoCQDg&ved=0CAYQFjAB&client=internal-uds-cse&usg=AFQ jCNFEVYny3eyW28b3SQrKgpAlrqyHKA> accessed 28 January 2014. 321 Gorry, ‘The National Employment Rights Authority’ (Employment Rights Ireland) <http://employmentright sireland.com/tag/national-employment-rights-authority/> accessed 28 January 2014. 322 NERA, ‘Employment Law Explained’ (Workplace Relations 2008) <http://www.labourcourt.ie/en/Publica tions_Forms/Employment_Law_Explained.pdf> accessed 28 January 2014. 323 Labour Court, ‘National Employment Rights Authority (NERA)’ (Workplace Relations) <http://www. labourcourt.ie/en/Workplace_Relations_Bodies/National_Employment_Rights_Authority/> accessed 28 Janu ary 2014. 320

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the rights commissioner service Molly O’Casey

1. founding, purpose and function 1.1 Founding The Rights Commissioner Service (RCS) was established by the Industrial Relations Act, 1969. The RCS operates as part of the Labour Relations Commission, but performs its duties independently of the commission. The stated purpose of the RCS is ‘to investigate and recommend on disputes and grievances referred by individuals or small groups of workers under the relevant industrial relations/employment rights legislation’. The RCS may investigate referrals under the following legislation: a) The Maternity Protection Act, 1994-2004, b) The Payment of Wages Act, 1991, c) The Terms of Employment (Information) Act, 1994, d) The Organisation of Working Time Act, 1997, e) The Adoptive Leave Act, 1995, f ) The Carers Leave Act, 2001, g) The Competition Act, 2002, h) The European Communities (Protection of Employment) Regulations, 2000, i) The European Communities (Protection of Employees of Transfer of Undertakings) Regulations, 2003, j) The Industrial Relations Acts, 1969-2001, k) The Industrial Relations (Miscellaneous Provisions) Act, 2004, l) The National Minimum Wage Act, 2000, m) The Organisation of Working Time Act, 1997, n) The Parental Leave Act, 1998, o) The Protection of Employees (Fixed-Term Work) Act, 2003, p) The Protection of Employees (Part-Time Work) Act, 2001, q) The Protection of Young Persons (Employment) Act, 1996, r) The Protection for Persons Reporting Child Abuse Act, 1998, s) The Safety, Health and Welfare at Work Act, 2005, t) The Unfair Dismissals Acts, 1977-2001.324

2. procedure 2.1 Complaints The service is available to all employers and employees who are not excluded by law (e.g. army, police and prison services). A labour union may also present a complaint with the permission of the concerned party. A written notice of complaint must be given to a Rights Commissioner within 6 months of the alleged breach of one of the above Acts. This may be extended by another 12 months if the claim was not made in time due to ‘reasonable cause’. A complaint can be made via an online complaint form on workplacerelations. ie. Before making a complaint the employee should tell the employer that he/she plans to contact the Rights Commissioner Service. If the complaint is about a statutory entitlement, then there should be an attempt to solve the matter internally first.325 2.2 Hearing Following the complaint, a Rights Commissioner is allocated to the case. The hearings are informal and held in private. However, if the breach comes under the Payment of Wages Act, the hearing is held in public, at

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Labour Court, ‘Rights Commissioner Service’ (Workplace Relations ) <http://www.labourcourt.ie/en/Work place_Relations_Bodies/Rights_Commissioners/> accessed 28 January 2014. Labour Court, ‘Rights Commissioner Service’ (Workplace Relations ) <http://www.labourcourt.ie/en/Work place_Relations_Bodies/Rights_Commissioners/> accessed 28 January 2014.

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the discretion of the Rights Commissioner. The Rights Commissioner may ask both sides to provide a brief outline of their case prior to the hearing. At the hearing, the Commissioner asks each party to present their case. The claimant and the employer may choose a representative. There are no restrictions on who may act as a representative. The parties can bring witnesses to the hearing. The parties can comment and ask questions about each other’s submissions. The Rights Commissioner can speak to parties separately in an attempt to resolve the dispute. 2.3 Remedy Depending on the legislation, the Rights Commissioner can issue recommendations or decisions. Both are binding unless they have been issued under the Industrial Relations Acts, 1969-2001. Both parties are legally bound to follow the decision they agreed on during the hearing.326 If an agreed settlement is not possible, the Rights Commissioner will issue a recommendation on the dispute. This will be posted out to the parties within a few weeks of the hearing.

2.4 Appeals Depending on the legislation, the parties can appeal to the Employment Appeals Tribunal or the Labour Court. The time limits in which an appeal must be made vary. In many cases, the time limit is within 6 weeks of parties receiving the result of their case. 2.5 Objection A party to a case can object to the investigation if the case has been referred under the Industrial Relations Acts, 1969-1990 or under the Unfair Dismissals Acts, 1977-2005. As a result the Rights Commissioner cannot investigate the case. The party can instead request the Labour Court or, under some legislation, the Employment Appeal Tribunal to hear the case.327

3. development

On 6 July 2012, the Minister for Jobs, Enterprise and Innovation published a policy document proposing that the Workplace Relations Commission bring together the existing services of the Labour Relations Commission, Rights Commissioner Service, Equality Tribunal, the National Employment Rights Authority and the first instance functions of the Employment Appeals Tribunal. The Labour Court would be the sole appeal body for all workplace relations appeals.328

the equality tribunal Molly O’Casey

1. founding and purpose The Equality Tribunal is an independent state body. The tribunal is separate and distinct from the Equality Authority. Its purpose is to investigate or mediate complaints of discrimination. It handles all complaints of discrimination in employment and access to goods and services which come under the Employment Equality Acts, 1998-2011, the Equal Status Acts, 2000-2011 and the Pensions Act, 1990-2009.329

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Gorry, ‘Rights Commissioner’ (Employment Rights Ireland) <http://employmentrightsireland.com/tag/ rights-commissioner/> accessed 29 January 2014. The Labour Relations Commission, ‘The Rights Commissioner Service’ (The Labour Relations Commission) <http://www.lrc.ie/viewdoc.asp?DocID=65> accessed 29 January 2014. Labour Court, ‘Rights Commissioner Service’ (Workplace Relations) <http://www.labourcourt.ie/en/Work place_Relations_Bodies/Rights_Commissioners/> accessed 28 January 2014. Forde and Byrne, Employment Law, (3rd edn Round Hall 2009), 452.

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2. applicable legislation

2.1 The Employment Equality Acts, 1998 - 2011 The Employment Equality Acts, 1998 - 2011 outlaw discrimination at work including: a) Recruitment and promotion. b) Equal pay. c) Working conditions. d) Training or work experience. e) Dismissal. f ) Harassment including sexual harassment. 2.2 The Equal Status Acts, 2000 - 2011 The Equal Status Acts, 2000 - 2011 outlaw discrimination outside the workplace, in particular: a) In the provision of goods and services, b) In the selling, renting or leasing of property, c) In certain aspects of education. 2.3 The Pensions Act, 1990-2009 Under the Pensions Act, 1990-2009, the Equality Tribunal deals with complaints of discrimination on the grounds of gender, relating to occupational benefit or pensions schemes.330 2.4 Exception Complaints about licensed premises (e.g. pubs) and registered clubs (e.g. golf clubs) must be pursued in the District Court.331

3. definitions

3.1 Discrimination Discrimination occurs when a person is treated less favourably than another person is, has been, or would be treated because of: a) Gender, b) Civil status, c) Family status, d) Religion, e) Sexual orientation, f ) Age, g) Disability, h) Race (including colour, nationality, ethnic or national origins) or, i) Membership of the Traveller community.

4. procedure 4.1 Complaints Complaints under the Employment Equality Acts 1998 – 2011 must be brought within 6 months of the last act of discrimination. Prior to making a complaint under the Equal Status Acts 2000 – 2011, the person or organisation the complaint is being made against must be notified within 2 months of the last act of discrimination. This notice period can be extended to 4 months by the Director of Equality Investigations. The complaint may proceed if a response has not been given within 1 month or if the response is inadequate. Complaints about discrimination in pensions under the Pensions Act, 1990-2009 must be brought no later than 6 months after leaving the job. Depending on the legislation, the time limit can be extended to 12 months for ‘reasonable cause’. A complaint can be made via an online complaint form on workplacerelations.ie.

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Employment Matters, ‘Equality Tribunal- For Employees’ (Employment Matters) <http://www.employ ment-matters.ie/?page_id=217> accessed 29 January 2014. Labour Court, ‘Equality Tribunal’ (Workplace Relations) <http://www.labourcourt.ie/en/Workplace_Relations_ Bodies/Equality_Tribunal/> accessed 29 January 2014.

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4.2 Mediation When making a complaint, mediation may be offered. Mediation involves a mediator attempting to facilitate an agreement between the two parties. Mediation is held in private and the agreement is not published. If successful, both sides sign an agreement which is legally binding. Both sides must obey the terms of the decision. If unsuccessful, then the complaint proceeds to an investigation.332 4.3 Investigation The investigation is a quasi-judicial process carried out by a Tribunal Equality Officer. The officer considers both parties’ submissions. He/she then arranges a hearing of the case, which is held in private. The officer issues a decision which is also legally binding. The decisions must be published by law, but in sensitive cases the names can be withheld. 4.4 Remedies Remedies can include: a) Compensation, b) An order for equal pay or equal treatment, c) An order to take a specific action.333

4.5 Appeal All Tribunal decisions can be appealed within 42 days of the issue of the decision. The Labour Court hears appeals for employment and pension cases. The Circuit Court hears appeals for equal status cases. 4.6 Advice The Tribunal cannot give advice to either side on the merits of cases. It must be impartial. Advice may be given to employees by a trade union, support group, the Citizens Information Centre or the Equality Authority. The Irish Business and Employers’ Confederation (IBEC) may advise employers.334

the employment appeals tribunal Kyle Moran

1. the role of the organisation The Employment Appeals Tribunal (EAT) is an independent body. It is an informal and inexpensive way to obtain redress for the infringement of certain employment rights. It adjudicates on disputes about individual employment rights that arise either during one’s employment or on its termination. The Tribunal hears a wide range of disputes and makes legally binding decisions. Depending on the legislation, it hears claims or appeals. Sometimes a claim is made directly to the Tribunal such as in the case of unfair dismissal, redundancy and minimum notice.335 In other cases it hears appeals against decisions or recommendations of a Rights Commissioner. Most of the Tribunal’s work is in the sphere of unfair dismissals, working time, the Redundancy Payments Acts and the Minimum Notice and Terms of Employment Act.336 The Employment Appeals Tribunal deals with many disputes.337

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333 334

337 335 336

Employment Matters, ‘Equality Tribunal- For Employees’ (Employment Matters) <http://www.employ ment-matters.ie/?page_id=217> accessed 29 January 2014. Forde and Byrne, Employment Law, (3rd edn Round Hall 2009) 452. Employment Matters, ‘Equality Tribunal- For Employees’ (Employment Matters) <http://www.employ ment-matters.ie/?page_id=217> accessed 29 January 2014. Daly and Doherty, Principles of Irish Employment Law (Clarus Press, 2010) 19. Daly and Doherty, Principles of Irish Employment Law (Clarus Press, 2010) 19. Minimum Notice and Terms of Employment Acts 1973 – 2005, Unfair Dismissals Acts 1977 – 2007, Protec tion of Employees (Employers’ Insolvency) Acts 1984 – 2004, Organisation of Working Time Act 1997, Payment of Wages Act 1991, Terms of Employment (Information) Acts 1994 and 2001, Maternity Protection

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2. procedure for bringing a case If you have been made redundant, unfairly dismissed or did not receive minimum notice you apply using the new online complaint form. This is available by selecting ‘Make a complaint in relation to employment rights’ on workplacerelations.ie. In other cases you apply using the e-form if you wish to appeal the recommendation or decision of a Rights Commissioner, a decision of the Minister for Social Protection where the employer has been declared insolvent, or if you are seeking to enforce or implement a Rights Commissioner’s recommendation or decision.

3. result and appeals process

A determination of the Tribunal may be appealed on a point of law to the High Court. An appeal to the High Court must be brought within 21 days of the date on which a copy of the decision was given to the appealing party but this time limit may be extended by the High Court. An unfair dismissal decision can be appealed to the Circuit Court within six weeks of the determination.

rights in relation to disciplinary proceedings Susanna Morgan

1. introduction Disciplinary rules and procedures help to promote orderly employment relations as well as fairness and consistency in the treatment of individuals. Such rules inform employees of the behaviour that employers expect from them. If an employee breaks specific rules about behaviour, this is often called misconduct. Employers use disciplinary procedures and actions to deal with situations where employees break or allegedly break disciplinary rules.338 2. What is a disciplinary proceeding? A disciplinary proceeding may be brought by an employer where he/she has a complaint or concern about the performance of an employee. Common reasons for complaint include dissatisfaction with standard of work, behaviour at work, or absence from work.339 Disciplinary proceedings may be in the form of:340 a) An oral warning. b) A written warning. c) A final written warning. d) Suspension without pay. e) Transfer to another task, or section of the enterprise. f ) Demotion. g) Some other appropriate disciplinary action short of dismissal. h) Dismissal.

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Acts 1994 and 2004, Adoptive Leave Acts 1995 and 2005, Protection of Young Persons (Employment) Act 1996, Parental Leave Acts 1998 and 2006, Protections for Persons Reporting Child Abuse Act 1998, European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, European Communi ties (Protection of Employment) Regulations 2000, Carer’s Leave Act 2001and Competition Act 2002. Labour Relations Agency, Code of Practice: Disciplinary and Grievance Procedures (2011) 7. http://www.workplacerelations.ie/en/Publications_Forms/Grievance_and_Disciplinary_Procedures.pdf (Ac cessed 25th February). http://www.workplacerelations.ie/en/Publications_Forms/Grievance_and_Disciplinary_Procedures.pdf Ac cessed 25th February 2014

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3. what should the format be? Under the Unfair Dismissals Act 1977-2007, in order for a disciplinary proceeding to be legally valid, two central principles must be adhered to by employers: a) Dismissal of an employee will be presumed to be unfair unless substantial grounds can be offered to justify the dismissal. b) Employers must ensure that they have familiarised their employees with written procedures which must be followed before dismissal of an employee. This must be done within 28 days of an employee entering into a contract of employment. Although employers are not bound to any exact code of practice when drawing up these procedures, guidelines for such procedures exist in the form of the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000.341 Those adjudicating an employment matter (i.e. Employment Appeals Tribunals and the Civil Courts) will use the 1990 Code as a benchmark of the standard required by employers. This benchmark strives to ensure that any good disciplinary procedure should be fair, clear (particularly when relating to penalties), and should have an internal appeals mechanism.

4. can the result be appealed? Appropriate procedures not only ensure that the employer acts in the correct manner when disciplining employees but also that grievances on the part of the employee are handled in an appropriate and fair way. In order to ensure that procedures are complied with in a fair way, the Labour Relations Commission has suggested that employers consider the following:342 a) That employee grievances are fairly examined and processed; b) That details of any allegations or complaints are put to the employee concerned; c) That the employee concerned is given the opportunity to respond fully to any such allegations or complaints; d) That the employee concerned is given the opportunity to avail of the right to be represented during the procedure; e) That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

5. how can you appeal? An employee who has been disciplined or dismissed may appeal his decision in two ways: a) Submitting a claim to a Rights Commissioner or Employment Appeals Tribunal within 6 months (12 months in exceptional circumstances) or, b) Pursuing the claim through the Courts where he/she can bring an action for breach of contract. Because the cause of actionÂ is a breach of contract, the time limit is six years.

6. is there a right to legal representation? An employer is under no obligation to admit legal representation to a disciplinary meeting. However, an employee does have the right to have a union representative present to speak on their behalf even if the company does not recognise a union. The courts have stressed that legal representation in disciplinary proceedings should be permitted where required by the principles of constitutional justice.343

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Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (SI No. 146 of 2000). Labour Relations Committee, Code of Practice:Â Grievance and Disciplinary Procedures, (LRC 146 â&#x20AC;&#x201C; 2000). Burns & Anor v The Governor of Castlerea Prison (2009) IESC 33.

UCD STUDENT LEGAL SERVICE , SUTHERLAND SCHOOL OF LAW , BELFIELD , DUBLIN