Discrimination in the Provision of Goods and Services in Ireland-the Essentials

equal status discrimination

Not a lot of people know this..

Most people think the WRC (Workplace Relations Commission) only deals with employment and/or industrial relations issues.

That’s not the case, at all.

The Workplace Relations Commission also deals with complaints about discrimination in the provision of goods and services, accommodation, and access to education under the Equal Status Acts 2000-2015.

Discrimination in the context of employment has 9 grounds of discrimination. But under equality legislation there is now 10 grounds of discrimination, thanks to the Equality (Miscellaneous Provisions) Act 2015, which created a 10th ground in respect of housing assistance.

The main thrust of the Equal Status acts is to prevent discrimination in relation to the provision of all services, including entertainment, banking, transport, travel, insurance, and more.

The 10 grounds of discrimination covered by the Equal Status acts are

  • Gender
  • Civil status
  • Race/colour/nationality
  • Family status
  • Sexual orientation
  • Age
  • Membership of the travelling community
  • Disability
  • Housing assistance in relation to the provision of residential accommodation

How to Make a Complaint to the WRC

The first thing you must do is to complete and send a form-ES1-which is a notification in writing to the person/company who you are complaining about. This form must specify the act of alleged discrimination and must be received by the other party within 2 months’ of the incident.

The other party does not have to respond, but if he chooses to do so may use form ES2.

If the other party ignores you and does not respond within 1 month, or you are not happy with the reply, you can then refer the complaint to the WRC for adjudication. This referral must be made within 6 months of the alleged discrimination.

In due course an adjudication hearing will be heard and both parties can put their side of the story forward and the adjudicator will make a decision.

Equal Status Acts in Ireland

The relevant legislation is:

  • The Equal Status Act, 2000
  • The Equality Act, 2004
  • The Equal Status (Amendment) Act, 2012
  • The Equality (Miscellaneous Provisions) Act, 2015.

The Law Reform Commission has published a consolidated version of the Equal Status Acts which you can access here.

How to Change a Name by Deed Poll

If you want to change a name by deed poll, the Judgments Section of the Central Office of the High Court will be your first port of call.

deed-poll-ireland

The Judgments Section/Deed Poll section will give you precedent wordings that you can use and adapt to your own particular circumstances and which will be used in your deed poll application.

Changing a Child’s Name

If the child is aged between 14 and 17 years, the child can execute/sign a deed poll with the consent of both parents.

If a child is under the age of 14 years, a parent who is a guardian must sign the deed poll with the consent of the other guardian. If this consent is not forthcoming you need to contact the Judgments Section of the Central Office of the High Court.

Documents Required

To change a name by deed poll you will need

  • The deed poll printed on good quality strong paper-deed paper, parchment paper, or judicature paper is recommended
  • An Affidavit of Attesting Witness-this is a sworn statement from the person who witnessed the execution/signing of  the deed poll
  • The Original Birth Certificate of the person who wants to change name.

There is a stamping fee of €35 which will need to be stamped on the deed poll.

All documents to do with your deed poll application must be lodged by hand in the Judgments Section of the Central Office of the High Court.

Foreign Nationals

A foreign national must first obtain a change of name licence from the Irish Naturalisation and Immigration (INIS) before filling out  a deed poll. A British citizen does not need a licence but will need a letter from the INIS confirming this for the Deed Poll section of the High Court.

How to Become an Irish Citizen through Naturalisation

You acquire Irish citizenship through birth, descent or naturalisation.

how-to-become-irish-citizen

This piece will look at how to become an Irish citizen through naturalisation which is how a foreign national living in Ireland can become an Irish citizen.

All application for Irish citizenship must be approved by the Minister for Justice and Equality.

Are you Eligible for Irish Citizenship?

To become an Irish citizenship through naturalisation you need

  • To be at least 18 years of age
  • Be a person of good character (an Garda Siochana will provide a report about your background)
  • To have lived in Ireland for 1 year prior to your application for naturalisation and, in addition, you must have lived in Ireland for 4 years of the previous 8 years prior to your application. So you need to have lived in Ireland for at least 5 years out of the last 9 years
  • To intend to remain in Ireland
  • To make declaration of fidelity and loyalty to Ireland and pledge to observe the laws of Ireland

Self Supporting?

You must prove that you can support yourself and your family while living in Ireland. You do this by demonstrating that you have not received any state support in the 3 years prior to your application.

How the Application for Naturalisation is Dealt With

Your application for naturalisation needs to pass an initial processing stage. You should know within 1 week whether you are successful at this stage or not.

If it has passed the initial stage, your application will be processed within about 6 months.

If your application is then approved you will be given a letter setting out the documentation you will require before the certificate of naturalisation is issued to you.

Once this certificate of naturalisation is issued, you are an Irish citizen from the date of the certificate.

Fees

The initial application fee for applying for naturalisation is €175.

If you are successful and a certificate of naturalisation is to be issued the fee at this stage is €950 or €200 for a minor or widow/widower/surviving civil partner of an Irish citizen.

If you need assistance with any aspect of becoming an Irish citizen, please contact us through the form below or call.

Consumer Rights And Product Liability-What Rights Have Consumers for Defective Products?

 

defective products law ireland

Consumer rights and product liability in relation to defective products are governed by a combination of protections such as common law which protects against tort or civil wrongs such as negligence.

The law of contract will also provide relief to the consumer in relation to defective products; legislation such as Liability for Defective Products act 1991, the Civil Liability Act of 1961 and other more modern European legislation including directives and regulations.

Liability For Defective Products Act 1991

Under this act the consumer does not need to prove negligence on behalf of the supplier or retailer; he/she merely needs to show that the product caused the consumer damage because of a defect in the product. Liability For Defective Products Act, 1991

2.—(1) The producer shall be liable in damages in tort for damage caused wholly or partly by a defect in his product. (Section 2 Liability for Defective Products Act 1991).

It is a strict liability therefore the consumer does not need to show any negligence on the part of the manufacturer. So you just need to show a link between the product and the damage suffered.

The Statute of Limitations, that is the time within which an action must be brought, is three years. There is also a long stop cut off point of 10 years, that is a claim may not be brought after 10 years from the introduction of the product into circulation.

Common Law-Negligence

The consumer will need to prove that the manufacturer owed a duty of care to the consumer, that that duty of care was not upheld, that there was loss or damaged incurred by the consumer as a result of the failure in relation to the duty of care and there was a close connection between the injury suffered and the conduct of the supplier/manufacturer.

By whom is the duty of care owed?

  1. Manufacturers-there is a duty of care owed by a manufacturer to those who may foreseeably be damaged or injured by the product
  2. Repairers-garages repairing motor cars is an example
  3. Installers and assemblers
  4. Suppliers for reward are also potentially liable
  5. Retailers, although their duty may be narrower than a manufacturer’s

To whom is the duty owed?

The ultimate consumer of the product.

Causation

The consumer must show that the negligent supply/manufacture of the product caused injury or damage to the plaintiff or his property.

The principle of res ipsa loquitur applies in product liability case.

Learn more about negligence here.

Sale of Goods Act

The Sale of Goods Act 1893 and the Sale of Goods And Supply of Services Act 1980 state that the supplier has a contractual duty to the consumer in relation to the consumer in respect of defects in his product. It is difficult to recover under this act against a manufacturer as your contract will be with the retailer.

European Legislation

Various pieces of European legislation such as the European Directive on Product Liability and the European Communities (General Product Safety) Regulations 2004 also provide protection to the consumer in relation to defective and dangerous products.

Under the Liability For Defective Products Act 1991 liability is strict and no duty of care needs to be established and this is why it will be used on many occasions along with perhaps a legal action for breach of contract and/or negligence.

The time within which you can bring an action under the various headings above varies from 2 years in relation to a personal injury claim to 6 years for breach of contract under the Sale of Goods Act.

If you are unfortunate enough to suffer as a result of a dangerous/defective product make sure to retain the evidence carefully including the product itself, any invoices/receipts and a good note of where and when you purchased it.

National Consumer Agency

The National Consumer Agency is a good source of information in this whole area as it has some pretty strong powers under the Consumer Protection Act of 2007.

Information Technology Law, Electronic Commerce, Illegal Use of the Internet & Acceptable Usage Policies for Internet and Email-the Essentials

information-technology-law

Information technology law covers a very diverse range of topics for businesses and consumers alike in Ireland.

It ranges from data protection to electronic commerce to illegal use of the internet to acceptable usage policies for employees’ use of the internet and email in the workplace.

This article attempts to provide an overview of these areas but do bear in mind that it can only be a brief overview.

However, whether you are a business or consumer or employee hopefully it will point up areas of potential breach of rights and/or obligations so that you can avoid them or seek redress where appropriate.

Electronic Commerce

The Electronic Commerce Regulations 2003

These regulations implement an EU directive which covers the whole area of electronic commerce and the provision of services and goods online.

A key feature is that once a provider of these goods or services is established in a member state of the EU he is entitled to provide his goods/services into any other member state. Nevertheless in Ireland our common law rules regarding the formation of contracts will continue to apply.

Country of origin principle

This states that providers of goods/services will only have to comply with the rules of the country in which those service providers are established.

Information before contract

One of the principle effects of the Regulations is the list of information which must be provided by businesses operating online. This list includes

  • The name of the business
  • The address where established
  • Details of the business including email
  • Details of how people can elect not to receive unsolicited commercial communications
  • The trade register applicable to the business, if the business is registered on a trade register
  • Any supervisory/regulatory authority governing the industry
  • Vat no. of business
  • Prices must be shown clearly and unambiguously

Internet law has a huge impact on internet marketing and the various laws surrounding how we communicate by email and other electronic forms in our marketing efforts.

Rules re emails/direct marketing

All commercial communication should be clearly identified as such

  1. The sender should be clearly identified
  2. Details about how the recipient can register their choice re unsolicited communication should be provided
  3. Promotional offers should be clearly identifiable as such
  4. Competitions and/or games should have their rules of participation clearly accessible

Internet law also requires that other information and the steps taken to communicate are done within certain boundaries….

Other information required re electronic contracts

  • The steps needed to be taken to conclude the contract
  • The means for correcting input errors before placing the order
  • Whether the concluded contract will be filed by the service provider
  • However this does not apply when the contracts are concluded exclusively by email.

Procedures to be followed when contracting online with consumers

When the order is placed by the consumer the supplier should acknowledge it’s receipt without delay by electronic means.

The order and acknowledgment are deemed to have been received when the party to whom it is addressed is able to access it. It is not a defence to refuse to open email when you know it contains acceptance of an offer for example.

European Communities (distance contracts) 2001

This is of enormous significance for any business which provides goods/services by means of distance communication which includes selling on the internet, digital tv, mail order, telephone, tv, radio and newspapers and magazines.

This legislation provides most significantly for a cooling off period allowing the consumer the opportunity to cancel the contract.

These regulations do not apply to

  • Auctions
  • Vending machines
  • Contracts in connection with property.

The distance communication must be the only method of communication with the consumer for these regulations to apply-if a face to face meeting was involved then the regulations do not apply.

A contract will not be enforceable against the consumer unless all of the information outlined above in the Electronic Commerce Regulations 2003 is provided.

In addition details must be provided to the consumer of

  • The main characteristics of the goods/services
  • Price
  • Delivery costs if any
  • Arrangements for payment, delivery
  • The right of cancellation
  • The period for which the price remains valid.

A distance contract will not be enforceable against a consumer unless the consumer has been provided with a written confirmation of the information outlined above.

Written confirmation must be provided during the performance of the contract.

Cooling off period

The consumer has a right to a cooling off period of 7 days during which he can cancel without giving a reason.

If the confirmation obligations have not been complied with then the cooling off period is extended by up to 3 months.

However the consumer’s right to cancel does not apply..

  • For services if performance has already commenced with the consumer’s agreement
  • Goods/services which are subject to change in the financial market
  • For perishable or customised goods
  • For newpapers, magazines and periodicals
  • For audio or video recordings or computer software which was unsealed

If the consumer exercises his right to cancel during the cooling off period then he is entitled to a reimbursement even if the condition of the product is perfect. This is unique in consumer legislation.

The supplier must execute performance of the contract within 30 days and inertia selling is prohibited.

Inertia selling is a demand for an unsolicited product or service.

A person who fails to comply with these regulations will be guilty of an offence and can be fined up to €3,000

These regulations are obviously of enormous importance to internet sellers and must also be read in conjunction with other consumer protection legislation which is covered in this website including sale of goods and supply of services legislation, misleading advertising legislation, unfair contracts and defective products legislation.

Liability of Internet Service Providers

Internet law also lays down rules in respect of internet service providers.

An ISP is not liable for the information it transmits where it is merely acting as a conduit for such information (But the ISP must be passive in this regard)

ISPs are also excluded from liability regarding hosting of websites when the information is provided by third parties. However the ISP will not be excluded from liability when they know that the information being hosted concerns unlawful activities.

ISPs are also exempt from being sued re breach of copyright where they cache information which is copyrighted.

Defamation

The Electronic Commerce Act 2000 makes it clear that the normal rules of defamation apply to information transmitted online and published on websites. However they may have a defence if they are unaware that the material published is defamatory; once on notice of the defamation though they will have no defence.

For this reason it is prudent for website owners to utilise well drafted limitation and exclusion of liability clauses and incorporate them into their standard terms and conditions.

Child pornography

The main act dealing with this issue is The Child Trafficking and Pornography Act, 1998 (amended in 2004).

This act is very broad and wide ranging and even covers ‘depictions of children’ with no need to prove that the images are actually children.

For this reason website owners must make provisions in their terms and conditions to ensure that contributors to blogs, chat rooms etc are aware of this and should be forced to scroll down through the terms and conditions and signal acceptance before being allowed to post comments, material etc.

Illegal use of the internet

1) Hacking-difficult to prosecute but The Criminal Damage Act 1991 makes provision for this.

2) The Criminal Damage Act 1991 covers damage to property and property includes data; damage can include altering, corrupting and erasing data.

3) It also covers the offence of threatening to damage property so even an unsuccessful hacker can be charged under this section.

4) Another section covers the situation where a person has in their possession the means to hack-again they may be charged under this section even though they have caused no damage to data.

5) The act also includes an offence of unauthorised access and this offence relates only to computer crime.

The act also provides very extensive powers to search and arrest under this legislation.

The Criminal Justice (Theft and Fraud Offences) Act 2001 can also be used to prosecute as it provides that it is an offence to use a computer to make a gain or cause a loss to another. This is an example of our ordinary legislation being amended to accommodate the reality of internet law in the 20th century.

Harvesting

This is the operation of collecting email addresses for the purposes of spamming. This clearly is in breach of the Data Protection act 1988 and 2003.

If the data harvested is not personal data it is conceivable that the harvesting may be an offence under the Criminal Damage Act, 1991.

Other offences which may occur include Framing, trade mark infringements when using meta tags, linking to other sites which may breach copyright of the site to which you link. If in doubt consult your solicitor.

Electronic Commerce Act, 2000

This law will not apply to the sale of land or wills which must still be evidenced in writing. This act makes a distinction between electronic signatures and advanced electronic signatures.

This act also recognises that electronic communications, signatures and contracts cannot be denied legal effect simply because they are in this form. However the parties must consent to the information being provided in electronic form for it to have full legal recognition.

Electronic signature

This can include your name typed at the end of an email or a scanned version of a handwritten signature. Generally this type of signature has the same effect as a hand written signature.

Advanced electronic signature

This is uniquely linked to the signatory, created by means under the sole control of the signatory and linked to the data in such a way that any subsequent change of the data is detectable.

Managing employess access to email and internet

Internet law also plays a role in how we manage our employee’s access to internet and email. And there is a tension between internet law and a person’s human rights, it has been held in the UK.

Employment law

You as an employer can face difficulties when it comes to the use of the internet and email by your employees. A range of problems can arise such as

1) employees abusing companies email for personal gain
2) emailing confidential information out of the organisation
3) employees viewing unsuitable content and making unauthorised use of the company’s computer system.

You as an employer can face a tough balancing act between allowing employees reasonable access to email and internet and inappropriate use. emails sent by employees can often cause offence and possibly result in legal action against you by the recipient or offended person.

The commercial reality for you as an employer is that you can not afford to ban employees use completely and it can be useful and efficient to let employees do their personal banking online for example.

The Employment Equality Act defines sexual harassment very widely and because an employer is liable for acts done by it’s employees in the course of their work it can create difficulties for you as an employer and perhaps legal action by an aggrieved party if your employees send emails which sexually harass or bully.

There is also the possibility of a recipient of an email receiving an email that he considers blasphemous.
This too is covered under the Employment Equality legislation and could be considered to be discrimination.

Acceptable Usage Policy

For these reasons you need to have an acceptable usage policy for your employees when it comes to their use of the internet and email.

If you accept that the reality of the situation nowadays is that you will not prevent your employees use of the internet then your Acceptable Usage Policy should cover issues such as to what extent email usage can take place for private purposes…..

  • Can you as an employer access and intercept and review all messages which are sent and received on the computer system?
  • Is internet surfing prohibited?
  • Are outgoing emails on behalf of the company vetted be senior staff?

Because that email could bind your company contractually.

  • Have you a policy for the opening of external emails?….Because they can contain harmful viruses which can threaten your computer system.
  • Have you advised your staff about the possibility of breaching somebody elses copyright by retransmitting or copying their documents or software?
  • Are your employees informed that the downloading of obscene or pornographic material can be a criminal offence?
  • Will your acceptable usage policy set out the procedures and penalties for breach of your policy?
  • If you decide to monitor employees usage is it justifiable and not excessive?

Because if it is over the top you could be held in breach of your employee’s human rights as happened in a 2007 case Copland v United Kingdom.
In this case the European Court of Human Rights held that a college had violated an employee’s human rights by the way in which it monitored her use of the telephone.

It has been held by the courts that phone calls from business premises have rights of privacy.

The important point about your acceptable usage policy is that you have the consent of your employees.

In Ireland the Data protection commissioner is of the view that it is necessary to get the express(in writing) consent of your employees if you wish to monitor their emails.

It is worth remembering that your company’s electronically stored information can be used in evidence in legal proceedings.

And remember that just because you have deleted the files or emails does not actually mean that they do not exist…..Because they can be dragged back up from your computer by computer experts.

You need to accept that without an acceptable usage policy and a prior written warning it is unlikely that you can dismiss an employee for unauthorised usage of your computer.

But a possible exception to this general rule is the use of the computer to download pornography…….especially Child porn.
The Child Trafficking and Pornography Act 1998 contains such severe penalties that if you as an employer are aware that this is happening you should refer the matter to the Gardai.

Conclusion

You should consider drawing up an acceptable usage policy for your employees.

The balancing of your rights as an employer with the employees rights as human beings needs to be carried out by a suitably qualified legal professional.

Related topics that may also concern you include data protection law in Ireland and having an acceptable usage policy for employees’ use of the internet and email .

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