The Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024

20 November 2024

The Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024 (the ‘Act’) has been signed into law. The Act amends the Maternity Protection Act 1994 (the ‘1994 Act’), the Employment Equality Act 1998 (the “EEA”), and the Social Welfare Consolidation Act 2005. Our Employment and Immigration Law team outline the employment law implications of the Act below.

Postponement of maternity leave

The Act amends the 1994 Act by the insertion of a new section 14C which introduces an entitlement for an employee who has a serious health condition to postpone their maternity leave for a period of between five and 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 an employee, and in order to address the risk, requires necessary medical intervention that is ongoing for a period of time to be carried out in respect of the employee.

The postponement process

The Act provides for the following notification requirements and entitlements in respect of the postponement of maternity leave:

The notification to postpone must detail when the proposed postponement is to commence and end. The notification must be accompanied by a medical certificate signed by a medical practitioner specifying the relevant dates and must be received at least two weeks before the postponement is due to commence.
A second and final notification of postponement of the relevant maternity leave is permitted under the Act. The second postponement notification follows the requirements of the first, requiring a signed medical certificate from a medical practitioner, and details of the second postponement period dates. This notification must be made at least two weeks prior to the second postponement commencement date.
The Act permits a total postponement period of 52 weeks (both periods of postponement inclusive), in respect of the same birth. An employee who avails of the new provision under the Act is entitled to the remainder of their full maternity leave.
An employee who is eligible for both section 14B(1) of the 1994 Act (Postponement of maternity leave or additional maternity leave in event of hospitalisation of child) and the new section 14C(1) of the Act (Postponement of maternity leave in event of serious health condition of relevant employee) shall not be entitled to postpone maternity leave under both sections for the same birth.

Amendment to the Employment Equality Act 1998

The Act amends the EEA with the insertion of a new section 14B. This section introduces the additional regulation of a non-disclosure agreement (”NDA”) in cases of alleged discriminatory harassment, sexual harassment or victimisation.

An NDA under the Act is an agreement (whether in writing or otherwise) between an employer and employee that purports to preclude the making of a relevant disclosure by the employer, employee, or both. A relevant disclosure can be where an employee is alleging that they were discriminated against, or are subject to victimisation, harassment, or sexual harassment, in relation to their employment or prospective employment. It can also include any action taken by the employer or employee in response to the making of such allegations, 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.

An employer is prevented from entering into an NDA with an employee, where allegations of harassment, sexual harassment, or victimisation as provided for under the EEA, have been made by an employee. Any agreement entered into in such circumstances, contrary to the Act, will be null and void.

Exceptions to the general rule under the Act

The Act provides for exceptions to the general restriction on NDAs under the Act in the following circumstances:

Where the NDA is entered into under the terms of resolution of a WRC Mediation agreement referred to in section 39(4) of the Workplace Relations Act 2015; or
Where the NDA is entered into under the terms of a settlement through a WRC Equality Mediation Officer referred to in section 24(4) of the Equal Status Act 2000; or
An ‘excepted NDA’: where the employee requests the NDA, and where the relevant employee has received independent legal advice on the legal implications of such an agreement, in advance of signing. The employer must discharge all reasonable legal costs and expenses incurred by the employee gaining legal advice on the matter.

What is required for excepted NDA?

An excepted NDA must:

be in writing, and be of an unlimited duration, other than where the employee directs otherwise;
be in clear and simple language and should be easily accessible by all parties including where a party has a disability;
provide, where elected by the employee, to allow them to withdraw from the agreement without penalty no later than 14 days after the agreement was entered into; and
include a provision stating that the agreement does not prohibit the employee from making a relevant disclosure to a person concerned who is acting during the course of their office, employment business, trade or profession, such as a member of an Garda Síochána, a legal practitioner, a registered medical practitioner, a mental health professional, an officer of the Revenue Commissioner, an Ombudsman or an official of a trade union.

The employee must be provided with a copy of the executed agreement.

Considering an excepted NDA requires the employee to have received independent legal advice prior to signing the NDA, we would also advise that an acknowledgment of receipt of legal advice is made in any excepted NDA.

Employers’ action points

This new right to postpone maternity leave in cases of serious illness will mean a change to HR practice and policies. For employees who may previously have been denied the enjoyment of their maternity leave due to a serious health condition, they will now have time to get care or treatment within the length of the postponement period for up to a year without it effecting their maternity leave.

The new regulation on NDAs will increase the focus on the prohibition of certain disclosures and may encourage parties to look closely at how agreements might become excepted NDAs under the Act.

Get in touch

While we await the commencement of the employment related aspects of the Act, if your organisation needs assistance in drafting settlement agreements, including NDAs, or in dealing with postponement requests, or in updating policies or procedures, please contact a member of the KPMG Law LLP Employment Law Team.