Michael Noonan (Limerick City, Fine Gael) | Oireachtas source

In early 2013, the NTMA chief executive committed to a review of NTMA policy in respect of notice periods and post-termination restrictions on employment. Accordingly, the law firm Matheson was engaged by the NTMA to: advise on market norms in the private sector in terms of notice periods and post-termination restrictions; assess the adequacy of the protections in the current NTMA employment contracts-codes of conduct where employees leave the NTMA to join a commercial entity in the private sector that might gain an unfair advantage by employing them; and recommend changes that could be made in this area by the NTMA.

This review applied across all the NTMA's business areas, including NAMA. All NAMA staff are employees of the NTMA and under section 42 of the National Asset Management Agency Act 2009 the NTMA assigns staff to NAMA. Other than a small number of staff reassigned from other functions within the NTMA, NAMA staff are employed on the basis of specified purpose contracts and their employment is for as long as NAMA requires their particular skills.

Matheson's principal recommendations include longer notice periods - three to six months - to be introduced for middle and senior NTMA management employees; garden leave provisions to be included in all NTMA employment contracts; post-termination of employment restrictions, including cooling-off periods and non-solicitation of employees, to be considered on a case-by-case basis in respect of senior NTMA management employees in particular. However, Matheson stressed that the imposition of such restrictions would need to be balanced against the NTMA's need to recruit good candidates for whom such restrictions may act as a significant disincentive to taking up employment with the NTMA. Furthermore, to maximise the prospects of enforceability, Matheson advised that any such restrictions would need to be drafted as narrowly as possible.

Additional Information not given on the floor of the House

It was proposed by Matheson that any required changes resulting from these recommendations would be introduced for new NTMA employees and existing NTMA employees on promotion. The NTMA has accepted the Matheson proposals and is implementing them on this basis.

With regard to staff assigned to NAMA, it should be noted that the three month notice period and garden leave provision were already in operation since the first persons were assigned at the start of 2010.  A provision prohibiting certain activities in an employee's subsequent employment for a defined period of time has also been introduced on a case-by-case basis for new employees, in cases where employees have moved from fixed to specified purpose contracts, and on promotion.

The Deputy will also be aware that there are extensive safeguards in place to protect the confidentiality of information held by NTMA employees, including those assigned to NAMA.  Employees assigned to NAMA by the NTMA, as is the case with all other NTMA staff, are subject to section 14 of the National Treasury Management Agency Act 1990, which prohibits an employee from disclosing any information obtained while carrying out their duties as employees of the NTMA. Employees assigned to NAMA are also subject to a prohibition on release of confidential data under sections 99 and 202 of the NAMA Act 2009.  NTMA employees, including those assigned to NAMA, are subject to the Official Secrets Act.  Contravention of these prohibitions is a criminal offence.  These protections do not cease at the point of resignation but rather apply indefinitely and extend to former employees. 

In the context of the above, I am fully satisfied that there is an appropriate period of time allotted for notice of leave for senior staff in NAMA having regard to the importance of NAMA being able to attract and retain appropriately qualified and skilled employees from the private sector to enable it do its work on behalf of Irish taxpayers.  Mobility with the private sector is a critical component of the wider NTMA model and we have to accept that if it is to be successful mobility is a two-way street.

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