Approval for legislation amending the Maternity Protection Act

Approval for legislation amending the Maternity Protection Act

Minister for Children, Equality, Disability, Integration and Youth, Roderic O’ Gorman announced the General Scheme of the Maternity Protection (Amendment), and Miscellaneous Provisions Bill 2024 has been approved by Government.

The Scheme provides for the intention to introduce legislation to:

• Amend 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. The need for the pause must be certified by a doctor or consultant.

• Provide that members of the Oireachtas have an entitlement to 26 weeks maternity leave, which they were not entitled to before.

• 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 proposed provisions will include 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.

Maternity Leave for Members of the Oireachtas:

The scheme highlights that members of the Oireachtas have an entitlement to 26 weeks maternity leave, which they were not entitled to before and porposes a new insertion in the Act which specifically provides for a pregnant member of the Oireachtas to be entitled to leave, to be known (and referred to in this Act) as “maternity leave for members of the Oireachtas”, for a period of 26 consecutive weeks.

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

New proposals have been tabled 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 does not currently include the use of NDAs where allegations of sexual harassment or discrimination have been made.

The new provisions would 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.

Amendment to the Workplace Relations Act 2015 (2015 Act)

A further update is proposing to amend Section 41(7)(c) of the 2015 Act which states that an Adjudication Officer shall not entertain a dispute referred to them in instances where there is a dispute in relation to the entitlements of an Employee under the 1994 Act after a six-month period from the date that an Employer is informed that an Employee is pregnant, has recently given birth, or is breastfeeding.

This current position limits the time for bringing a claim under the 1994 Act which in most cases has often expired by the time the Employee returns to work. The proposed changes will amend this section and allow Adjudication Officers to reject claims after the expiration of a period of six months “beginning on the day immediately following the date of the occurrence of the dispute”.

This amendment will further enhance the rights of those returning to work after maternity leave.

It would be advisable for all HR Professional’s to take note of these updates for when the legislation is enacted as Employee contracts and handbooks may need to be updated.

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