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On 24 July 2024, the Minister for Equality, Roderic O'Gorman, announced that the Government has given approval to the drafting of the Maternity Protection (Amendment) and Miscellaneous Provisions Bill 2024. The General Scheme of the Bill has been published and is available here. It contains important changes regarding an employee’s right to postpone maternity leave in circumstances where she is undergoing treatment for serious illness. It also contains important changes in respect of the use of non-disclosure agreements (NDAs) where an employee has made an allegation of discrimination, harassment, sexual harassment or victimisation.
In this briefing, we outline what you need to know regarding these legislative developments and we highlight the increase to parents leave which takes effect on 1 August 2024.
Maternity leave changes
Employees on maternity leave will be able to postpone all or part of the leave for a period of up to one year while receiving treatment for serious illness. The General Scheme envisages that the right to postpone maternity leave will be limited to serious physical health conditions which carry a high risk to the life of the employee. The Department of Equality is examining whether this provision should extend to very serious mental health issues. The employee will need to supply a medical certificate stating the nature and extent of the condition and the intervention required.
The General Scheme also proposes to introduce maternity leave for members of the Oireachtas (parliament) and it contains an amendment to the limitation period for referring claims under the Maternity Protections Acts to the WRC. Currently the time limit of six months (12 months where there is reasonable cause) to bring a claim runs from the date on which the employer is informed the employee is pregnant, has recently given birth, or is breastfeeding. This means that the protections provided by the Maternity Protection Acts in respect of returning to work after maternity leave may already have expired. It is therefore proposed that the time limit will start to run from “the day immediately following the date of the occurrence of the dispute”.
Changes to the use of non-disclosure agreements
NDAs are widely used in a range of contexts, most commonly where a compromise or settlement agreement is entered into with an employee. In 2022, Minister O’Gorman published a report on NDAs and their use in discrimination and sexual harassment disputes. The report contained a number of findings, including that NDAs are often signed in contexts where there are significant power imbalances between the parties.
The General Scheme now proposes to amend the Employment Equality Acts, prohibiting NDAs where the employee has experienced or made an allegation of discrimination, harassment, sexual harassment, or victimisation and the NDA has the purpose or effect of concealing the details. In an attempt to address the power imbalance, such agreements will only be possible at the request of the employee, in which case certain conditions must be satisfied, including:
It is expected the Minister will provide the form and manner of such an NDA in regulations. The General Scheme also states that the Department is to consider in drafting how to regulate employment contracts which contain NDAs but where the act of discrimination, harassment, sexual harassment or victimisation happens after the legislation is enacted.
Parent’s leave to increase from seven to nine weeks
As expected, the duration of parent’s leave will increase from seven to nine weeks. The Minister has appointed 1 August 2024 as the date from which this increase will take effect. Employers should update their policies accordingly. An employer does not have to pay an employee while they are on parent’s leave but some employers choose to top-up the parent’s benefit.
Next steps
It is anticipated the new legislation introducing changes in respect of maternity leave and NDAs will progress through the Oireachtas when the new term commences in September 2024. We will keep you updated as the Bill moves through the legislative process.
For further information in relation to this topic, please contact Triona Sugrue, Knowledge Consultant, Rachel-Maria Moore, Solicitor, or any member of the Employment team.
Date published: 30 July 2024
