Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I move amendment No. 7:

In page 6, between lines 30 and 31, to insert the following: “Amendment of 5. The 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 or

(ii) the terms of a resolution referred to in section 39(4) of the

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

(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

‘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

‘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 ”.”.

Amendment No. 7 inserts a new section 14B into the Employment Equality Act 1998 in order to introduce measures to limit the use of non-disclosure agreements, NDAs, where an employee has allegedly experienced discrimination, harassment, sexual harassment or victimisation. The proposals provide that any such NDAs may only be entered into if first requested by the employee and with legal advice provided at the employer's expense. The amendment lays out a list of conditions that must be met in order for such a NDA to be enforceable. It must be set out in writing, be in accessible format, have a 14-day waiting period to allow the employee to draw from the agreement, be of unlimited duration unless the employee elects otherwise, and include information about who the employee may make a disclosure to. This includes a garda, legal practitioner, registered medical practitioner, mental health professional, officer of the Revenue Commissioners, the Ombudsman, a trade union or such individual or member of such class of individuals as may be specified in the particular NDA. These NDA proposals were included in the general scheme and have been considered by the committee during pre-legislative scrutiny. The amendment further proposes to exempt NDAs that are agreed through the Workplace Relations Commission's mediation service. These proposals build on the previous Private Members' Bill sponsored by Senators Ruane, Flynn, Black and Higgins, which passed all Stages of the Seanad. My Department's public written consultation as part of the review of the equality Acts, which I published a report on last year, invited submissions on NDAs and it was noted that there was very significant support for this particular reform in those public submissions.

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