The Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024

On 28 October 2024, the President signed the Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024 (hereafter “the 2024 Act”) into law. This Act has made two key changes in respect of non-disclosure agreements (“NDAs”) and maternity leave. The provisions in the Act were commenced on a staggered basis, and as of 20 November 2024 all provisions of the Act are now in force.

Non-Disclosure Agreements

NDAs are legally binding contracts, or clauses in contracts, which prohibit parties from disclosing certain information. NDAs are also known as ‘confidentiality clauses,’ as they create a confidential relationship between the parties. NDAs have typically been used in severance agreements or contracts of employment to prohibit the disclosure of certain commercially sensitive information. The use of NDAs in the context of claims by employees of discrimination, harassment, sexual harassment and/or victimisation has been the subject of criticism, creating the perception of NDAs being used to silence employees and concealing such claims.

This criticism has led to the new provision introduced by the 2024 Act, which amends the Employment Equality Acts 1998-2015 (“EEA”) to prohibit the use of NDAs in respect of allegations of discrimination, harassment, sexual harassment, and/or victimisation. The new provision stipulates that any agreement or clause in an agreement (such as a confidentiality clause in a settlement agreement) which aims to prohibit the disclosure of information relating to a claim of discrimination, harassment, sexual harassment, and/or victimisation, shall be null and void. However, the new provision does allow for NDAs in two limited exceptions:-

1. where an NDA is a term of a settlement arising out of a Workplace Relations Commission (WRC) mediation; or
2. an excepted NDA.

An ‘excepted NDA’ is an NDA which the employee has specifically requested the employer to enter into, and one which, prior to entering the agreement, the employee has received independent legal advice in writing from a legal practitioner in respect of the legal implications of entering the proposed excepted NDA. An excepted NDA must also satisfy the following drafting criteria:-

1. be in writing;
2. be of unlimited duration (unless the employee wishes otherwise);
3. be in clear language that is easily understood and a format that is easily accessible (including by any party with a disability);
4. provide that the employee has a right to withdraw from the agreement without penalty within 14 days (‘cooling off period’); and
5. include a provision that the agreement does not prohibit the making of relevant disclosures to one or more listed persons, where at the time of the making of the disclosure, the person concerned is acting in the course of their office or employment (such as a member of An Garda Síochána, a medical professional, or a trade union representative).

The employer must also discharge the reasonable legal costs and expenses of the legal practitioner who provides the legal advice to the employee for the expected NDA to be valid; and the employer must provide the employee with a copy of the executed agreement.

This new provision means that all employment agreements (and in particular settlement or severance agreements), should be amended to ensure that they either do not prohibit the disclosure of information relating to allegations of discrimination, harassment, sexual harassment and/or victimisation. Alternatively, the agreements should be amended to satisfy the above criteria to be considered a valid excepted NDA.

Changes to Maternity Leave

The 2024 Act also amends the rules regarding maternity leave. Under the new provision, an employee will be free to postpone all or part of their maternity leave for a period of between five weeks and one year, provided they are in treatment for a ‘serious health condition which requires necessary medical intervention.’ ‘A serious health condition’ is defined as a condition which entails a serious risk to the life or health of an employee (including mental health); and one that requires ongoing ‘necessary medical intervention’ to address the risk for a period of time.

An employee can trigger this entitlement by way of a notice from the employee to the employer at least two weeks before the date on which the postponement is due to commence. This notice must be accompanied by a medical certificate. The employee may avail of one further postponement, provided the duration of both postponements together are less than one year.

Regarding serious mental health conditions, the Act has clarified that ‘necessary medical intervention’ is to be interpreted as in-patient hospital treatment. As mental health conditions can constitute a disability under the Employment Equality Acts, employers would normally be prohibited from discriminating between employees where one has a disability and the other has a different disability. However, the 2024 Act specifically clarifies that an employer’s action taken in compliance with the 2024 Act shall not constitute unlawful discrimination on the grounds of disability.

Conclusion

Employers should review their template employment agreements and amend or remove any confidentiality or non-disclosure clauses for cases involving allegations of discrimination, harassment, sexual harassment and/or victimisation. Also, any NDA must allow employees to withdraw from the NDA during the 14-day cooling off period. Both employers and employees should ensure the necessary independent legal advice employees are required to receive prior to entering an excepted NDA be in writing; and employers should also consider the additional cost implications of the new provision, as the employer must discharge the reasonable legal costs and expenses of the legal practitioner who provides the legal advice to the employee for the expected NDA to be valid.

Similarly, employers should review their maternity leave policies, specifically in regard to the minimum prior notification for the postponement, the required medical certification, and the maximum postponement duration employees are eligible for.

If you have any queries on this please do not hesitate to contact Laura Graham at lgraham@reddycharlton.ie