Key Contacts: Patrick Walshe – Partner

In October of last year, the President signed the Non-Disclosure agreements and the Maternity Protection, Employment Equality and Preservation of Certain Records Act2024 (“the Act”) into Irish law.

The Act in summary:

  1. Permits the postponement of maternity leave in the event of a serious health condition; and
  2. Amends the Employment Equality Acts to provide for a restriction on the use of non-disclosure agreements, in respect of allegations of discrimination, victimisation, harassment and sexual harassment, whereby such agreements will be null and void, unless certain conditions are met.

Non-Disclosure Agreements

Section 5 ofthe Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024 came into force on the 20th of November 2024. The section precludes employers from entering into non-disclosure agreements (“NDA”) which prevent employees from making allegations of discrimination, victimization, harassment or sexual harassment in relation to their employment. Any non-excepted NDAs entered after the 20th of November will be null and void.

Exceptions to the Rule

There are two key exceptions to this. First, NDAs entered as part of a WRC Mediation.

Second, it is an excepted NDA, this is where the NDA is requested by the employee. For this exception, the employer must pay for the employee to receive independent legal advice, on the legal implications of the NDA. There is also a 14-day “cooling off” period after the agreement is signed during which the employee can withdraw from the NDA without penalty.

Excepted NDAs shall be in writing, of an unlimited duration (unless the employee elects otherwise) and, insofar as possible, be in clear, easily understood, accessible language. Any excepted NDA’s must also include a provision stating that the agreement does not prohibit the Employee from making a relevant disclosure to listed persons.

Relevant disclosures include the making of an allegation of discrimination, harassment or victimization in relation to his/her employment. Listed persons include groups such as Garda Síochána, legal practitioners, medical practitioners, ombudsman, and trade union officials. This provision ensures that employers cannot tactically avoid liability in cases of serious employment equality breaches.

Ultimately, the new law will necessitate extra consideration for severance, settlement, and compromise agreements, potentially serving as a tool for disgruntled employees during negotiations.

Postponement of Maternity Leave

Since commencement of the Act, those availing of maternity leave who are suffering from a serious health condition, can postpone their maternity leave for a period ranging from 5 to 52 weeks. A serious health condition, including mental health issues, must pose a serious risk to life or health and require necessary ongoing medical intervention to come within the remit of the Act.

An employee must notify their employer of their intention to postpone maternity leave and provide the following:

  • The proposed commencement and end date of the postponement; and
  • A medical certificate signed by a registered practitioner, specifying such dates.

The notification must be made at least 2 weeks prior to the postponement.

Once suitable, the relevant employee is entitled to resume maternity leave for a continuous period after the postponement provided. To ensure transparency, the employee must inform their employer of their intention to resume maternity leave as soon as reasonably practicable, but no later than the day the leave recommences.

In the event the employee suffers further illness, the Act allows individuals to postpone their maternity leave one further time only, once their employer is notified in the same manner as prescribed above.

Affected employees and employers should note, individuals who avail of the Act, cannot postpone maternity leave under this provision and 14B of the Maternity Protection Act 1994 (i.e. in the event of the hospitalisation of a child) in respect of the same birth.

This article was written with the assistance of Ronan McNulty.

Key Contacts