Yule-tide legalities

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Now in their busiest trading period, retailers should note that there have been some changes to the law since last Christmas, most notably in the laws governing the sale of alcohol in off-licence premises



8 December 2008

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The sale of alcohol

Permitted off-sales trading hours for christmas 2008
The permitted trading hours have been altered dramatically by the Intoxicating Liquor Act 2008. As a result, off-licence alcohol sales during the Christmas period are now restricted:

Monday to Saturday – from 10:30am to 10:00pm
Sundays – from 12:30pm to 10:00pm
Christmas Day – Closed

All staff, including temporary Christmas staff, must be aware of the permitted trading hours for alcohol.

Age restrictions for alcohol sales

Only persons aged 18 or over may sell alcohol, otherwise a criminal offence will be committed. Persons employed in a store who are under 18 years of age may not (under any circumstances) go behind the counter to serve a customer alcohol.
A person must be 18 years of age or over to be allowed buy alcohol or tobacco. A conviction of selling alcohol to a person under 18 in court will result in a mandatory temporary closure order on the premises as well as a significant fine, and could potentially also lead to an endorsement of the licence attaching to the premises.

Staff employment issues   

Given the busy times ahead over the coming weeks, you may decide to hire extra staff and/or ask your existing staff to work more hours. You might also hire young staff on a temporary basis. Here’s what you should keep in mind:

General statutory entitlements of staff

Staff are entitled not to work more than 48 hours a week (not including rest/meal breaks) and must have a minimum daily rest period of 11 hours in a 24 hour period, and a weekly 24 hour rest period in addition to the daily rest period. Staff are entitled to a 15 minute break after a work period of four hours and 30 minutes, increasing to 30 minutes for six hours.
Staff, whose hours of work include 11.30 am to 2.30 pm, must get an hour’s break during this time for every six hours of work.
If not included in the rate of pay, Sunday work can entitle the employee to extra payment, time off in lieu or a combination of both.

Public holiday entitlements

There are three public holidays over the Christmas season: Christmas Day, St. Stephen’s Day and New Year’s Day. Qualifying staff are entitled to one of the following as decided by the employer: (a) a paid day off on the day itself; (b) a paid day off within a month; (c) an additional day’s annual leave; or (d) an additional day’s pay.
If the employee normally works on the day the holiday falls, they are entitled to a paid day off that day. If it falls on a day they don’t normally work, the employee may get one fifth of their weekly wage, or (b) or (c) above as decided by the employer. If the employee is asked to work on the public holiday, the employee is entitled to either (b), (c) or (d) above as decided by the employer.

In order to qualify for the public holiday entitlement, part-time staff must have worked at least 40 hours in the five weeks ending on the day before the public holiday.

Young Staff

Generally speaking, persons under the age of 14 cannot be employed in the retail sector. It is permissible to employ children over the age of 14 years, but in general, this can only be done under the following conditions as set out in statute:
(i)  Persons aged 14:
•    Can perform light work for no more than seven hours a day and no more than 35 hours in a week, and only outside of school term
•    Must get a 30 minute break if working over four hours
•    Must get a rest period of 14 consecutive hours in each 24 hour period
•    Must get at least two days off in a seven day period, these days to be consecutive as far as is practicable
•    Cannot work between the hours of 8:00pm and 8:00am

(ii)  Persons aged 15:
The conditions are the same as for 14 year-olds with the exception that a 15 year-old can work for up to a maximum of eight hours per week during school term   

(iii)  Persons aged 16 and 17:
•    Cannot work for more than eight hours a day and no more than 40 hours in a week
•    Must get a 30 minute break if working over four and a half hours
•    Must get a rest period of 12 consecutive hours in each 24 hour period
•    Must get at least two days off in a seven day period, these days to be consecutive as far as is practicable
•    Cannot work between the hours of 10:00pm and 6:00am

The above sets out the general position on employing young staff, but there are some exceptions, for example, where close family relatives are concerned.

Consumer rights

It is crucial to remain aware of consumers’ rights over the busy Christmas season. Among these rights are those relating to:

Display of prices

Ensure that your shelf-edge price labels are in place and are accurate, this remains one of the main causes of on-the-spot fines and prosecutions. Have your staff check regularly that the price labels haven’t fallen off the shelf-edges. Another pitfall to avoid is having your price labels concealed behind other display cards/labels.

False representations

Make sure that any claims made or displayed in respect of products are true and accurate. Saying that a product is limited in stock or available at a particular price for a limited time only is okay, only provided it’s the truth!
It is an offence to make a false representation that a product will only be available for a very limited time or that it will only be available on particular terms for a very limited time, in order to push consumers to make an immediate decision to purchase that product. It is also an offence for retailers to engage in “bait” advertising, i.e. traders who “bait” consumers by advertising products at a specified price, that are not in fact available or are available only in very limited quantities.

Faulty/damaged goods

As goods should be fit for the purpose for which they are sold, a customer is entitled to a repair, replacement or refund if the product does not measure up to this requirement. They are also entitled in these circumstances to refuse a credit note. Customers are not however automatically entitled to a refund if they simply change their mind.

Seasonal goods

The EC (General Product Safety) Regulations 2004 apply to non-food products generally and will apply to Christmas decorations and other festive products which retailers may be selling. They must be aware that:
It is an offence to place or to attempt to place any product on the market unless it is a safe product. A safe product is defined as one which when used in normal or reasonably foreseeable conditions does not present any risk, or only the minimum risks compatible with its use, to persons or animals.
Some products, such as candles for example, carry an inherent risk and can be very dangerous if not used responsibly. In such cases there is a duty on producers to provide warnings to the consumer about such dangers.
The NCA carries out market surveillance to ensure compliance by retailers and the NCA has the power to prosecute offenders and order that dangerous products be removed from the market.

A toy must comply with the following conditions:
•    It must be safe
•    It must carry the CE mark for safety in a visible form
•    It must carry the name, trade name or mark and the address of the manufacturer or his authorised representative or importer of the toy into the EU
•    Warnings and precautions to be taken during use should be included on the toy
•    And in general, it must comply with the essential safety requirements set out in the regulations which can be summarised as:
•    Where a toy might be dangerous for children under 36 months, or should only be used under adult supervision, it must carry a warning to this effect. If there are risks involved with the use of a particular toy, appropriate labels must attached
•    Toy packaging must not present a risk of strangulation or suffocation, the toys themselves must be made of materials which are not readily flammable or toxic, and should be designed and manufactured so as to meet the requirements of hygiene and cleanliness to avoid risk of infection, sickness and contamination
While a breach of these requirements is an offence, retailers should also be aware that they may face an action in negligence resulting in damages if injury results from the goods sold.
In addition, retailers should be aware that if they sell toys or novelties with batteries included, or indeed if they sell batteries, they will come within the scope of the recently introduced Waste Management (Batteries and Accumulators) Regulations 2008.
Retailers selling batteries, or selling toys or novelties with batteries included, are obliged to take back waste batteries and/or rechargeable batteries from consumers. (See ShelfLife article on battery legislation at www.shelflife.ie.)

Christmas decorations/lights?

Christmas lights are regulated by the European Communities (Low Voltage Electrical Equipment) Regulations 1992 (as amended). Under these regulations retailers must ensure that electrical goods (such as Christmas lights) do not endanger the safety of persons, domestic animals or property. These products must not be sold without a CE mark, and therefore retailers must ensure that this is present.



© Matheson Ormsby Prentice 2008
The information in this article is not intended to provide, and does not constitute, legal or any other advice on any particular matter, and is provided for general information purposes only.
This legal update is compiled by Kerry Hiles from the Employment, Pensions and Benefits Law Group of leading corporate law firm, Matheson Ormsby Prentice.

For more detailed legal advice please contact Kerry Hiles at Matheson Ormsby Prentice, Solicitors, 70 Sir John Rogerson’s Quay, Dublin 2, by telephone on 01 232 2000 or by email at kerry.hiles@mop.ie

Further information on the firm is available at www.mop.ie



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