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

I thank Senator Ruane for bringing forward this Bill, which highlights the importance of transparency in addressing discrimination and ensuring cases of harassment and sexual harassment do not remain concealed, thereby protecting and providing cover to those who commit these acts. The Government indicated on Second Stage it would not oppose this Bill but would instead conduct its own research in to the prevalence of the use of non-disclosure agreements, NDAs, in cases such as this.

In March of this year, officials in my Department published a report, The prevalence and use of Non-Disclosure Agreements (NDAs) in discrimination and sexual harassment disputes. This research highlighted that NDAs are commonly used in a range of contexts within Ireland and other jurisdictions, but it also noticed there were significant data gaps. The inherent secrecy of these contracts presents challenges in rectifying this. NDAs are often signed in contexts where there is a significant power imbalance between the signatories.

The report notes there appears to be a consensus among all stakeholders that some change is needed, with differing perspectives on the optimum legislative response to the challenge presented by the use of NDAs. While some commentators and practitioners favour the effective prohibition of NDAs in cases of sexual harassment or discrimination, others favour their regulation but still see an important role for them in the ethical resolution of disputes.

The main recommendation from the report is that prevention is key. Human resource practices should encourage reporting and foster a workplace culture that does not tolerate sexual harassment or discrimination. In cases in which a settlement following a dispute includes an NDA, however, employers should ensure best practice is followed. I have considered the outcomes of this research and I now intend to address the findings as part of the ongoing review of the equality Acts by my officials. The process of undertaking that review was valuable. I thank my officials for their work in helping to undertake and devise the review, which is already being looked at as quite significant work.

In the context of that ongoing work on the equality Acts, last year I launched the public consultation process to inform the review of the equality Acts to examine the functioning of the Acts and their effectiveness in combating discrimination and promoting equality. My Department was pleased to receive an extensive response to the consultation, and the submissions are currently being analysed. It is intended that legislative proposals arising from the review will be brought forward at the end of this year, including addressing the use of non-disclosure agreements in discrimination and harassment cases.

Notwithstanding the intention of Government to bring forward our own proposals, I will indicate amendments to this legislation which the Government intends to bring forward on Report Stage. In this section, the substitution or deletion of definitions of "relevant employee", "relevant individual" and "non-disclosure agreement" may be required to provide greater legal clarity and certainty.