Triona Cody

President Michael D. Higgins has signed into law the Maternity Protection, Employment Equality and Preservation of Certain Records Bill 2024. We await the commencement order which will specify the date(s) on which the new legislation will become effective. 

The bill includes the following provisions:

1. Postponement of maternity leave in the event of a serious health condition;
2. Maternity leave for members of the Oireachtas;
3. Regulation of non-disclosure agreements in cases of discrimination or harassment; and
4. Preservation of private records.

Postponement of maternity leave in the event of a serious health condition

The bill amends the Maternity Protection Act 1994 to provide for the postponement of maternity leave for up to 52 weeks where an employee who is pregnant or on maternity leave has been diagnosed with a serious health condition.

A serious health condition means a health condition that entails a serious risk to the life or health, including the mental health, of the employee and requires necessary medical intervention that is ongoing for a period of time.

An employee’s written notification to their employer must include the following information:

1. the date on which the proposed postponement is to commence; and
2. the date on which the proposed postponement is to end (which must be at least 5 weeks from the commencement of the postponement).

The notification must be made at least 2 weeks before the date on which the proposed postponement is to commence and be accompanied by a medical certificate which also specifies the dates referred to at (a) and (b).

When the notification has been made as set out above, the employee is entitled to the maternity leave, or part thereof, not taken because of the postponement, to be taken in one continuous period commencing on the day immediately after the end date. This is subject to an employee’s written notification to their employer as soon as reasonably practicable, but no later than on the day on which the leave begins, of their intention to commence such leave.

An employee who has postponed all or part of their maternity leave, may notify their employer a second time of their intention to postpone their maternity leave. This second postponement must be to a date that is no later than 52 weeks from the date on which the first postponement commenced.

An employee is not entitled to postpone maternity leave, in respect of the same birth, both under this provision and under section 14B (where their child is hospitalised).

Maternity leave for members of the Oireachtas

The bill also provides maternity leave for members of the Houses of the Oireachtas, entitling the relevant member to maternity leave of up to 26 weeks. 

Regulation of non-disclosure agreements in cases of discrimination or harassment

The bill inserts a new Section 14B into the Employment Equality Act 1998 regulating the use of a non-disclosure agreement (NDA) by an employer.

An NDA means an agreement, or provision thereof, whether or not in writing and howsoever described, between an employer and an employee that purports to preclude the making of a relevant disclosure by the employer or by the employee, or both.

A relevant disclosure means a disclosure of information relating to either or both of the following:

1. the making by the employee of an allegation that they were discriminated against, or subjected to victimisation, harassment or sexual harassment, in relation to their employment (or prospective employment) by the employer;
2. any action taken by the employer or employee in response to the making of the allegation referred to in (i) above, including any action taken in relation to any complaint made, or proceedings taken, by the employee in relation to the subject matter of the allegation.

An NDA entered into by an employer where the employee has alleged discrimination, harassment, sexual harassment or victimisation will be null and void unless it comes within one of the following exceptions.

Mediation in the Workplace Relations Commission (WRC)

An employer may enter into an NDA with an employee as part of a WRC mediation resolving or settling an employee’s alleged complaint(s).

NDA requested by employee

An employer may enter into an NDA with an employee where the employee requests the employer to do so, and prior to entering into the agreement, the employee has received independent legal advice in writing from a legal practitioner in relation to the legal implications of entering into the agreement. An employer must pay the reasonable legal costs and expenses of the legal practitioner who provides the legal advice.

Any such NDA must:

• be in writing;
• be of unlimited duration (unless the employee elects otherwise);
• be in clear language that is easily understood;
• be in a format that is easily accessible (including by any party with a disability);
• provide the employee with a 14 day “cooling off” period to withdraw from the agreement without penalty; and
• include a provision stating that the agreement does not prohibit the making of a relevant disclosure to one or more listed persons, where at the time of the making of the relevant disclosure, the person concerned is acting in the course of their office, employment, business, trade or profession.

Listed persons include a Garda, legal practitioner, medical practitioner, Revenue, Ombudsman, trade union official or such individual as may be specified in the NDA.

Preservation of private records

The bill also includes provisions to preserve privately-held records relating to Ireland’s institutional past.

• Triona Cody is a partner in Kane Tuohy’s employment and litigation department. Laura O’Brien assisted in the writing of this article.