Changes to the Maternity Protection Act and restrictions on the use of NDAs have been signed into law

At a glance

• The Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024 (Act) introduces the right to postpone maternity leave in the event of a serious health condition of the employee.
• The Act also restricts the use of non-disclosure agreements (NDAs) connected to allegations of discrimination, victimisation, harassment, or sexual harassment.

The Act was signed into law on 28 October 2024. Part 3 of the Act (Preservation of Certain Records) is effective from 5 November 2024, but further commencement orders are required for the remainding provisions of the Act to become effective.

The most relevant changes are summarised below (none of which are currently in force).

Postponement of maternity leave in the event of a serious health condition of the relevant employee

A pregnant employee or an employee on maternity leave who has a serious medical condition (ie a condition that poses a significant risk to their life or health and necessitates extended medical treatment) may notify their employer in writing of their intention to postpone the commencement of all or part of their maternity leave for up to 52 weeks. 

However, an employee cannot postpone their maternity leave for both a serious health condition and the hospitalisation of a child related to the same birth.

Restrictions on non-disclosure agreements

Subject to certain conditions, NDAs that attempt to prevent an employee from sharing information about allegations (or the employer’s actions in response to those allegations) related to discrimination, victimisation, harassment, or sexual harassment are considered null and void.

However, where an employee has requested an NDA, provided the employee receives independent legal advice in writing prior to entering into the agreement, it will be enforceable (Excepted NDA). All reasonable legal costs and expenses associated with receiving the legal advice are to be covered by the employer.

Excepted NDAs must:

• be in writing;
• be of unlimited duration, unless the employee elects otherwise;
• be in clear language that is easily understood, and in a format that is easily accessible by the parties, including any party with a disability;
• provide that the employee has a right to withdraw from the agreement without penalty within 14 days; and
• include a provision stating that the agreement does not prohibit the employee making a relevant disclosure to a member of the Garda Síochána, a legal practitioner, a registered medical practitioner, a mental health professional, an officer of the Revenue Commissioners, an officer of the Ombudsman, an official of a trade union, or such individual, or a member of such class of individuals, as may be specified in the agreement.

If you require further information in relation to changes to the Maternity Protection and Employment Equality legislation, please contact a member of DLA Piper’s Irish Employment team.