New legislation on the use of Non Disclosure Agreements now enacted into Irish law

Approval for legislation amending the Maternity Protection Act and use of NDA’S in employment equality claims

Minister for Children, Equality, Disability, Integration and Youth, Roderic O’ Gorman announced the updates to the Maternity Protection (Amendment) has been enacted into Irish legislation.

The amendment to the legislation included:

• Amending the Maternity Protection Act 1994 to allow for a pause in maternity leave in the case of a very serious physical or mental illness for a period of up to 52 weeks.

• Amend the Employment Equality Acts 1998-2015 to provide that an Employer shall not enter into a non-disclosure agreement [NDA] with an Employee where the Employee has made allegations of discrimination, harassment, sexual harassment or victimisation unless it has been requested by the Employee.

Maternity Protection Act 1994

The provisions will included a new insertion which will permit an Employee who is on maternity leave and who requires a necessary intervention to be carried out for a serious physical health condition that carries with it a high risk to the life of the Employee to:

• postpone all or part of the maternity leave,
• the maternity leave may not be postponed for a period longer than 52 weeks.

The new provision also states that where an Employee intends to postpone the leave, the Employee must notify her Employer in writing of her intention to postpone the leave and the date on which the intended postponement will commence. The notification must be provided not later than 2 weeks before the intended date of commencement of the postponement and the notification must include a medical certificate stating the nature and extent of the Employee’s health condition, and the intervention(s) required.

Amendments to the Employment Equality Act of 1998 – Update on non-disclosure agreements

The new proposal have to update the Employment Equality Acts by the insertion of a new section after Section 14 to the 1998 Act in relation to Non-Disclosure Agreements (NDAs). Section 14 of the 1998 Act states that a person shall be guilty of an offence if they procure or attempt to procure another person to do anything that constitutes discrimination or victimisation as noted in the Act. The Act did not previously include the use of NDAs where allegations of sexual harassment or discrimination have been made.

The new provisions prohibit the use of NDAs in instances where allegations of discrimination, harassment or victimisation occur and the purpose of the NDA is to conceal information in relation to that allegation, unless the employee requests for an NDA to be signed.

Furthermore, in order for an NDA to be enforceable, the Employee must be provided with independent legal advice, at the expense of the Employer. The terms of the NDA must be set out in writing, be for a limited duration and have a 14-day waiting period after the NDA is signed to allow the Employee to withdraw from the agreement (if they wish) before it comes into force.

The impact of these proposed changes may result in the regulation of non-disclosure agreements where allegations discrimination, harassment or victimisation so Employers will have to be cognisant of the impact of this.

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