Ireland updates maternity leave law and restricts use of NDAs

The changes, set out in the Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024 (‘the Act’), became law on 20 November.

Irish employment law has been changing dramatically and quickly in recent years, compelling employers to adapt. Employers should ensure that their employment policies and contracts are updated to comply with these most recent changes and that the issue of non-disclosure is addressed appropriately in any settlement.

Postponement of maternity leave

The Act amends maternity protection legislation to allow an employee to postpone maternity leave in the event of a serious health condition. 

An employee who is pregnant or on maternity leave may postpone their maternity leave if they have a serious health condition. This is a health condition which:

• entails a serious risk to an employee’s life or health, including mental health; and
• requires necessary medical intervention that is ongoing for a period of time.

Under the Act, “necessary medical intervention” in relation to mental health is defined as inpatient hospital treatment. The Act does not apply the same limitation to physical health conditions. 

If an employee wishes to postpone their maternity leave, they are required to notify their employer in writing and provide a medical certificate at least two weeks before the start of the postponement period. Maternity leave may be postponed for up to 52 weeks initially and by a further additional period in certain circumstances.

Non-disclosure agreements

The Act severely limits the use of non-disclosure agreements (NDAs) relating to: the making of allegations of harassment, sexual harassment, discrimination or victimisation; and/or any action taken in response to such allegations. NDAs caught by the Act are null and void, except where certain conditions are met.

An NDA will not be null and void where it is:

• entered into as part of a mediated settlement under employment equality/equal status legislation; or
• an “excepted NDA”.

An employer may enter into an excepted NDA where the following two conditions are met:

• the employee must request that the employer enter into an NDA; and
• the employee must receive independent legal advice in writing from a solicitor/barrister regarding the legal implications of entering the NDA. The employer must pay the reasonable legal costs which the employee incurs in getting legal advice on the excepted NDA. 

To qualify as an excepted NDA, all of the following conditions must be met:

• the NDA must be in writing;
• the NDA must be of unlimited duration (unless the employee chooses otherwise);
• insofar as possible, the NDA must be in clear language that is easily understood and in a format that is easily accessible, by the employer and employee; and
• the NDA must provide the employee with a right to withdraw from the NDA without penalty no later than 14 days from the date of entering into the agreement. This is effectively a cooling off period; and

• provide that the NDA does not prohibit the employee making a disclosure to one or more of a number of persons, including the Gardaí, a legal adviser, medical practitioner or trade union official.

These profound changes are likely to feature in settlement negotiations, and settlement agreements will need to be drafted very carefully to ensure statutory compliance.

Co-written by Dani Kane of Pinsent Masons.