Ensure non-disclosure agreements regarding discrimination, harassment and/or victimisation meet the new criteria
Section 5 of Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024 has come into effect on 20th November 2024. This section adds a new section 14B into the Employment Equality Act which restricts employers entering into non-disclosure agreements with employees relating to any allegations of discrimination, harassment, sexual harassment and victimisation.
This new section starts from the premise that employers “must not enter into” such non-disclosure agreements and that if they do, such agreements will be null and void. However, the section goes on to provide that this does not apply to agreements reached through the WRC Mediation Services or where it complies with the requirements of an excepted non-disclosure agreement.
The requirements of an “excepted non-disclosure agreement” will mandate amendments to severance and compromise agreements, to ensure that they are covered. The requirements are as follows:
- The employee requests the employer to enter into a non-disclosure agreement
- The employee receives independent legal advice in writing in relation to the implications of entering into the excepted non-disclosure agreement.
- The employer must pay the reasonable legal costs and expenses of the legal advice to the employee. As the legal advice is required to be in writing this is likely to be more than the typical €500 plus VAT.
- The excepted non-disclosure agreement itself must:
- be of unlimited duration, unless the employee decides otherwise;
- be in clear language that is easily understood and a format that is easily accessible (including by 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 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.
Link to Act – https://data.oireachtas.ie/ie/oireachtas/act/2024/37/eng/enacted/a3724.pdf
Author – Anne O’Connell 20th November 2024
Anne O’Connell
Solicitors
19-22 Lower Baggot Street
Dublin 2.
www.aocsolicitors.ie
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