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

PART 1 Preliminary and General

1. Short title and commencement

1. (1) This Act may be cited as the Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024.

(2) This Act, other than section 6, shall come into operation on such day or days as the Minister for Children, Equality, Disability, Integration and Youth may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

(3) Section 6 shall come into operation on such day or days as the Minister for Social Protection may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Expenses

2. The expenses incurred by the Minister for Children, Disability, Equality, Integration and Youth in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure, National Development Plan Delivery and Reform, be paid out of monies provided by the Oireachtas.

PART 2 Maternity Protection and Employment Equality

3. Amendment of Maternity Protection Act 1994

3. The Maternity Protection Act 1994 is amended—

(a) in subsection (1)(b) of section 8, by the substitution of “section 14B or section 14C” for “section 14B”,

(b) in subsection (2)(b) of section 13, by the substitution of “section 14B or section 14C” for “section 14B”,

(c) in subsection (1)(a) of section 14A, by the substitution of “postponed under section 14B or section 14C” for “postponed under section 14B”,

(d) in subsection (1) of section 14B, by the substitution of “Subject to subsection (2) and section 14C(10)” for “Subject to subsection (2)”, and

(e) by the insertion of the following section after section 14B:

“Postponement of maternity leave in event of serious health condition of relevant employee

14C. (1) A relevant employee may, in accordance with this section, notify her employer, or cause her employer to be notified, in writing (in this section referred to as a ‘relevant notification’) that she intends to postpone the commencement of all or part of her maternity leave to such date that is not later than 52 weeks from the date on which the postponement (in this section referred to as the ‘first postponement’) is to commence.

(2) A relevant notification shall—

(a) subject to subsection (5), specify the date on which the proposed postponement is to—

(i) commence, and

(ii) end (referred to in this section as the ‘end date’), which date shall be at least 5 weeks from the date referred to in subparagraph (i),

and

(b) be accompanied by a medical certificate signed by a relevant medical practitioner and specifying the dates referred to in paragraph (a).

(3) A relevant employee shall make a relevant notification not later than 2 weeks before the date on which the proposed postponement is to commence.

(4) Where a relevant notification has been made in accordance with subsections (1), (2) and (3)—

(a) the maternity leave concerned shall be postponed with effect from the date specified in the relevant notification,

(b) subject to subsection (5), the postponement shall end on the end date, and

(c) the relevant employee shall be entitled to the maternity leave, or part thereof, as the case may be, (in this section referred to as ‘relevant resumed leave’) not taken by the relevant employee by reason of the postponement, to be taken in one continuous period commencing on the day immediately after the end date.

(5) Entitlement to relevant resumed leave shall be subject to a relevant employee having notified her employer in writing (or caused her employer to be so notified) as soon as reasonably practicable but not later than the day on which the leave begins of her intention to commence such leave.

(6) Subject to subsections (7), (8) and (9), a relevant employee who has postponed all or part of her maternity leave in accordance with subsection (4)(a) may, once only, notify her employer, or cause her employer to be notified, in writing (in this section referred to as a ‘second notification’) that she intends to further postpone (referred to in this section as the ‘second postponement’) the commencement of her maternity leave, or the part of the maternity leave that she has not yet taken, to a date that is not later than 52 weeks from the date on which the first postponement is to commence.

(7) A second notification shall—

(a) specify the date on which the second postponement is to—

(i) commence (referred to in this section as the ‘second commencement date’) and which shall be no later than the end date, and

(ii) end (referred to in this section as the ‘second end date’),

and

(b) be accompanied by a medical certificate signed by a relevant medical practitioner and specifying the dates referred to in paragraph (a).

(8) A relevant employee shall make a second notification not later than 2 weeks before the second commencement date.

(9) Where a second notification has been made in accordance with subsections (6), (7) and (8)—

(a) the maternity leave concerned shall be postponed with effect from the second commencement date,

(b) the second postponement shall end on the second end date, and

(c) the relevant employee shall be entitled to the maternity leave, or part thereof, as the case may be, not taken by the relevant employee by reason of the first postponement and the second postponement, to be taken in one continuous period commencing on the day immediately after the second end date.

(10) An employee to whom subsection (1) of section 14B and subsection (1) apply shall not be entitled to postpone maternity leave under section 14B and this section in respect of the same birth.

(11) In this section—

‘Act of 2007’ means the Medical Practitioners Act 2007;

‘maternity leave’ includes, where applicable, a further period of maternity leave referred to in section 8, section 13(2), or section 13B;

‘medical practitioner’, ‘register’ and ‘Specialist Division’ have the same meanings as they have in the Act of 2007;

‘necessary medical intervention’, in relation to mental health, means inpatient hospital treatment;

‘relevant employee’ means an employee who—

(a) is—

(i) a pregnant employee, or

(ii) on maternity leave,

and

(b) has a serious health condition;

‘relevant medical practitioner’ means a medical practitioner who—

(a) is for the time being registered in the Specialist Division of the register of medical practitioners pursuant to section 47 of the Act of 2007 and is a specialist in a medical speciality recognised by the Medical Council under section 89 of that Act, and

(b) is treating, or is responsible for the treatment of, the relevant employee concerned in relation to the serious health condition concerned;

‘serious health condition’ means a health condition that—

(a) entails a serious risk to the life or health, including the mental health, of an employee, and

(b) 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.”.

4. Maternity leave for member of Houses of Oireachtas

4. (1) Any absence by a member from performing duties as such a member, duly notified to the Ceann Comhairle or to the Cathaoirleach of Seanad Éireann, as may be appropriate, during a period (whether or not deferred or paused in the event of the member having a serious health condition) of up to 26 weeks starting no earlier than 2 weeks before the end of the expected week of, and no later than the date of, the member’s giving birth to a child, shall be called maternity leave for a member of the Houses of the Oireachtas.

(2) The reference to absence in subsection (1) shall be construed as a reference to any absence connected with the member’s pregnancy and giving birth to a child.

(3) In this section—

(a) “member” means—

(i) a member for the time being of Dáil Éireann, or

(ii) a member for the time being of Seanad Éireann,

and

(b) a reference to the date of the member’s giving birth to a child shall—

(i) be construed as a reference to the date of the member’s giving birth to a living child, or to a stillborn child (within the meaning of the Civil Registration Act 2004), and

(ii) subject to subparagraph (i), include, where appropriate, the date of the member’s giving birth to a child occurring more than 2 weeks before the end of the member’s expected week of giving birth to the child.

5. Amendment of Employment Equality Act 1998

5. The Employment Equality Act 1998 is amended—

(a) by the insertion of the following section after section 14A:

“Non-disclosure agreements

14B. (1) Subject to this section—

(a) an employer shall not enter into a non-disclosure agreement, and

(b) where such an agreement is entered into, it shall be null and void.

(2) Subsection (1) shall not apply to—

(a) a non-disclosure agreement entered into under—

(i) the terms of a settlement referred to in section 24(4) of the Equal Status Act 2000, or

(ii) the terms of a resolution referred to in section 39(4) of the Workplace Relations Act 2015,

or

(b) an excepted non-disclosure agreement that is entered into in accordance with subsection (3).

(3) An employer may enter into an excepted non-disclosure agreement with an employee only where—

(a) the employee requests the employer to do so, and

(b) prior to entering into the agreement, the employee has received independent legal advice in writing from a legal practitioner in relation to the legal implications of entering into the agreement.

(4) The employer referred to in subsection (3) shall discharge the reasonable legal costs and expenses of the legal practitioner who provides the legal advice referred to in paragraph (b) of that subsection to the employee.

(5) An excepted non-disclosure agreement shall—

(a) be in writing,

(b) be of unlimited duration, other than where the employee elects otherwise,

(c) in so far as possible be in—

(i) clear language that is easily understood, and

(ii) a format that is easily accessible,

by the parties to the agreement, including by any party with a disability,

(d) provide that the employee has a right, where he or she so elects, to withdraw from the agreement without penalty no later than 14 days from the date on which the agreement is entered into, and

(e) include a provision stating that the agreement does not prohibit the making by the employee of a relevant disclosure in accordance with subsection (7).

(6) Where an excepted non-disclosure agreement is entered into, the employer shall provide, or cause to be provided, to the employee a copy of the executed agreement.

(7) An excepted non-disclosure agreement shall not prohibit the making by the employee concerned of a relevant disclosure to—

(a) one or more of the following persons where, at the time of the making of the relevant disclosure, the person concerned is acting in the course of his or her office, employment, business, trade or profession:

(i) a member of the Garda Síochána;

(ii) a legal practitioner;

(iii) a registered medical practitioner within the meaning of the Medical Practitioners Act 2007;

(iv) a mental health professional;

(v) an officer of the Revenue Commissioners;

(vi) an officer of the Ombudsman;

(vii) an official of a trade union,

or

(b) such individual, or a member of such class of individuals, as may be specified in the agreement as a person to whom a relevant disclosure may be made by the employee.

(8) The Minister shall—

(a) not later than 5 years after the date on which this section comes into operation, conduct a review of the operation and effectiveness of the section,

(b) not later than 6 months after the end of that period of 5 years, or on the completion of the review, whichever is the earlier, prepare a report, in writing, of the findings of the review and of the conclusions drawn from those findings, and

(c) cause copies of the report to be laid before each House of the Oireachtas.

(9) In this section—

‘Act of 2005’ means the Health and Social Care Professionals Act 2005;

‘employee’, in relation to an employer, includes, where appropriate, a prospective or former employee;

‘excepted non-disclosure agreement’ means a non-disclosure agreement that is entered into in accordance with subsections (5), (6) and (7);

‘harassment’ and ‘sexual harassment’ shall be construed in accordance with section 14A(7);

‘legal practitioner’ has the same meaning as it has in the Legal Services Regulation Act 2015;

‘mental health professional’ means—

(a) a psychologist who is a person—

(i) who practises as such,

(ii) who holds a qualification listed opposite the profession of psychologist in the third column of Schedule 3 to the Act of 2005 or a qualification that is a corresponding qualification, within the meaning of section 90 of that Act, to that qualification, and

(iii) following the establishment under section 36 of the Act of 2005 of the register of members of the profession of psychologist, whose name is for the time being entered in that register,

or

(b) a counsellor who is a person who—

(i) practises as such, and

(ii) has the requisite skills and judgement to provide counselling to a person to resolve or better cope with personal and interpersonal problems or difficulties;

‘non-disclosure agreement’ means an agreement, or provision thereof, whether or not in writing and howsoever described, between an employer and an employee that purports to preclude the making of a relevant disclosure by the employer or the employee, or both;

‘relevant disclosure’ means a disclosure of information relating to either or both of the following:

(a) the making by the employee of an allegation that he or she was discriminated against, or subjected to victimisation, harassment or sexual harassment, in relation to his employment (or prospective employment) by the employer;

(b) any action taken by the employer or employee in response to the making of the allegation referred to in paragraph (a), 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;

‘victimisation’ shall be construed in accordance with section 74(2).”,

and

(b) in section 17, by the insertion of the following subsection after subsection (1):

“(1A) In relation to discrimination on the disability ground, nothing in this Act shall render unlawful any act done in compliance with any provision of section 14C of the Maternity Protection Act 1994.”.

6. Amendment of Social Welfare Consolidation Act 2005

6. Section 47 of the Social Welfare Consolidation Act 2005 is amended by the insertion of the following subsection after subsection (7):

“(7A) Regulations may provide for the postponement of the payment of maternity benefit in the event of the person who is entitled to that benefit having a serious health condition within the meaning of section 14C of the Maternity Protection Act 1994, subject to the conditions and in the circumstances that may be prescribed.”.

PART 3 Preservation of Certain Records

7. Definitions (Part 3)

7. (1) In this Part—

“Act of 1986” means the National Archives Act 1986;

“Act of 1991” means the Child Care Act 1991;

“Act of 2022” means the Birth Information and Tracing Act 2022;

“adopted person” has the same meaning as it has in section 2 of the Act of 2022;

“boarded out arrangement” has the same meaning as it has in section 2 of the Act of 2022;

“care arrangement” means—

(a) a nursed out arrangement,

(b) a boarded out arrangement,

(c) an arrangement under which a child was placed with a foster parent—

(i) subject to subparagraph (ii), within the meaning of section 36(2) of the Act of 1991, or

(ii) where the arrangement concerned was made before the coming into operation of the provision referred to in subparagraph (i), in accordance with the law in force in the State at the time the arrangement was made,

whether or not the foster parent became the adoptive parent of the child,

(d) an arrangement made under section 36(1)(d) of the Act of 1991, under which a child was placed with a relative,

(e) an arrangement under which a child was placed as a resident of an institution, or

(f) an arrangement under which a child was placed with a prospective adoptive parent, whether or not the prospective adoptive parent became the adoptive parent of the child;

“civil partner” shall be construed in accordance with section 3 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

“cohabitant” shall be construed in accordance with section 172(1) of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

“County Home” means an institution specified in column 2 of Part 1 of Schedule 1 of the Mother and Baby Institutions Payment Scheme Act 2023;

“Director” means the Director of the National Archives;

“family member”, in relation to a person, means a spouse, civil partner, cohabitant, child, parent, sibling, half-sibling, grandparent, grandchild, aunt, uncle, niece or nephew (whether of the whole blood or the half-blood), grandniece or grandnephew of the person;

“industrial school, reformatory or related institution” means an institution that is specified in the Schedule to the Residential Institutions Redress Act 2002;

“information source” means a person in possession of a relevant record, but does not include—

(a) a relevant person, in so far as he or she is in possession of a relevant record that relates solely to himself or herself,

(b) a family member of a person referred to in paragraph (a) in so far as the family member is in possession of a relevant record that solely relates to the person concerned, or

(c) a public body;

“institution” means any of the following:

(a) a Mother and Baby Home;

(b) a County Home;

(c) a Magdalen laundry;

(d) an industrial school, reformatory or related institution;

(e) an orphanage;

(f) an institution designated by order of the Minister under section 8(1);

“local authority” has the same meaning as it has in the Local Government Act 2001;

“Magdalen laundry” means an institution specified in the Schedule to the Redress for Women Resident in Certain Institutions Act 2015;

“Minister” means the Minister for Children, Equality, Disability, Integration and Youth;