The Maternity Protection, Employment Equality and Preservation of Certain Records Bill 2024 has been passed by both Houses of the Oireachtas and will now go to the President to be signed into law. The Bill requires a commencement order before it becomes effective.

From an employer’s perspective, two most important changes brought about by Bill are that it:

1. allows for the postponement of maternity leave in the event of a serious health condition; and
2. amends the Employment Equality Acts to provide for a restriction on the use of non-disclosure agreements in respect of allegations of discrimination, victimisation, harassment and sexual harassment, whereby such agreements will be null and void, unless certain conditions are met.

Postponement of maternity leave in event of serious health condition
The Bill provides that:

1. A relevant employee (i.e. someone who pregnant or on maternity leave and has a serious health condition) can notify their employer that they intend to postpone the commencement of all or part of their maternity leave for up to 52 weeks. 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.
2. The notification to the employer must specify the date on which the postponement is to commence and end (which must be at least 5 weeks from the commencement of the postponement) and be accompanied by a medical cert which specifies those dates. The notification must be made at least 2 weeks before the postponement is due to commence.
3. Where a notification is made in accordance with the above, the relevant employee will be entitled to the maternity leave (or any untaken part thereof) to be taken in one continuous period on the day immediately after the end date. The entitlement to resumed leave is subject to the employee in writing notifying the employer of their intention to commence the leave as soon as reasonably practicable but no later than on the day on which the leave begins.
4. Where the employee has already postponed their leave, they may notify the employer in writing of their intention to postpone the commencement of the leave one further time only.
5. An employee cannot postpone their maternity leave under both this provision and under section 14B (i.e. in the event of the hospitalisation of a child) in respect of the same birth.

Restriction on use of non-disclosure agreements
The Bill adds a new section 14B to the Employment Equality Acts, which provides that:

1. An employer must not enter into a non-disclosure agreement and if they do the agreement will be null and void. A non-disclosure agreement is defined 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.
2. A relevant disclosure means a disclosure of information relating to either or both of the following:
   a. the making by the employee of an allegation that he or she was discriminated against, or subjected to victimisation, harassment or sexual harassment, in relation to his employment (or potential employment) by the employer;
   b. any action taken by the employer or employee in response to making of such an allegation, 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.
3. However, an employer may enter into an “excepted non-disclosure agreement” only 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 implications of entering into an agreement. The employer must also pay the reasonable legal costs and expenses of obtaining the legal advice.
4. In addition, any such agreement must:
   a. be in writing;
   b. be of unlimited duration, unless the employee decides otherwise;
   c. be in clear language that is easily understood and a format that is easily accessible (including by any party with a disability);
   d. provide that the employee has a right to withdraw from the agreement without penalty within 14 days; and
   e. 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, employment, business, trade or profession. Listed persons include Garda, lawyer, medical practitioner, mental health professional, Revenue, Ombudsman, trade union official or such individual as may be specified in the agreement.

For more information and advice on these changes, please contact any member of the Employment Law Group.