Ireland: Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024 Signed into Law on 28 October 2024
On 28 October 2024, the President of Ireland signed the Act into law. A commencement order needs to be published before all provisions of the Act will take effect (this is expected later this month). It is also anticipated that regulations will be published to enable a pause in payment of maternity benefit for employees seeking to postpone their maternity leave.
The Act provides for the ability of employees to postpone all or part of their maternity leave for a period between 5 weeks up to 52 weeks in the event of a serious health condition. The Act defines a serious health condition as a health condition that entails a serious risk to the life or health, including the mental health, of an employee, and in order to address the risk, the employee requires necessary medical intervention for a period of time to be carried out. This provision aims to provide greater flexibility and support for mothers who may need to delay their maternity leave due to health reasons.
Employers should review their maternity leave policies, with a view to tailoring these to accommodate the new right to postpone when it comes into effect.
Non-disclosure Agreements (NDA’s)
The Act also introduces restrictions on the use of NDAs in respect of allegations of discrimination, victimisation, harassment and sexual harassment. An NDA is defined in the Act as “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 the employee, or both.” Such agreements will be made null and void unless certain conditions are met, including when the employee in question has requested the employer to enter into the agreement and where the employee has received independent legal advice in relation to the agreement. The employer must pay the reasonable legal costs of the employee obtaining the legal advice.
In addition, to be enforceable, an NDA must be in writing and for an unlimited duration (unless the employee asks otherwise) and be in clear and easily understood language. The employee must also have the right to withdraw from the agreement without penalty within 14 days and provide that the agreement does not prohibit the making of relevant disclosures to listed persons (for example the police or a medical practitioner) where the person concerned is acting in the course of their office.
An NDA will also be permissible if it is a term of a settlement arising out of a Workplace Relations Commission mediation.
Once commenced, this new legislation will require settlement agreements to be specifically designed to prevent the inclusion of clauses that restrict the disclosure of information regarding allegations of discrimination, harassment, sexual harassment or victimisation. This change in the law has the potential to add further complexity to settlement or severance negotiations.
