The NDA ban in Ireland: section 14B and workplace harassment agreements

Since 20 November 2024 an Irish employer may not enter into a non-disclosure agreement, and if one is entered into it is null and void. That is section 14B(1) of the Employment Equality Act 1998, inserted by section 5(a) of the Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024 and commenced by S.I. No. 630 of 2024.

The prohibition is narrower than the headline and wider than most people assume, and both parts matter.

What is caught

Section 14B(9) defines a "non-disclosure agreement" as an agreement, or a provision of one, 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 either of them.

A "relevant disclosure" is a disclosure of information relating to either or both of:

• (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 the employment or prospective employment; and
• (b) any action taken by the employer or employee in response to that allegation, including any action about a complaint made or proceedings taken.

Three consequences follow from the drafting.

It reaches a clause, not just a document. "Or provision thereof" means a confidentiality clause buried in a severance agreement is caught even where the severance agreement as a whole is not.

It reaches former and prospective employees. "Employee" in section 14B(9) includes, where appropriate, a prospective or former employee. Exit agreements and job applicants are in scope.

It covers the response as well as the allegation. Paragraph (b) means the investigation, the outcome, the settlement discussions and the proceedings are all part of what cannot be gagged.

What is not caught

Ordinary commercial confidentiality. Trade secrets, source code, pricing, client lists, business plans — none of that is a relevant disclosure, and an employment confidentiality clause confined to it is unaffected. If you want an enforceable confidentiality clause in an Irish employment contract, keep it away from complaints.

The two exceptions

Section 14B(2)(a) exempts an agreement entered into under the terms of a settlement referred to in section 24(4) of the Equal Status Act 2000, or under the terms of a resolution referred to in section 39(4) of the Workplace Relations Act 2015 — a mediated resolution recorded by the WRC. Read narrowly: a privately negotiated severance agreement between the parties' solicitors, with no WRC involvement, is not within it however it is labelled.

Section 14B(2)(b) exempts an "excepted non-disclosure agreement". That is the route employers will actually use, and it has seven conditions spread across four subsections.

The seven conditions of an excepted agreement

1. The employee requested it — section 14B(3)(a). Not the employer, not the employer's solicitor. The employee.
2. The employee received independent legal advice in writing from a legal practitioner within the meaning of the Legal Services Regulation Act 2015, about the legal implications of entering into it, before entering into it — section 14B(3)(b).
3. The employer pays that practitioner's reasonable legal costs and expenses — section 14B(4).
4. It is in writing — section 14B(5)(a).
5. It is of unlimited duration, other than where the employee elects otherwise — section 14B(5)(b). This is the opposite of every commercial NDA instinct, and only the employee may shorten it.
6. It is in clear language that is easily understood and in a format that is easily accessible to the parties, including any party with a disability — section 14B(5)(c) — and it gives the employee a right to withdraw without penalty no later than 14 days from the date it is entered into (5(d)), and it states expressly that it does not prohibit a relevant disclosure (5(e)).
7. The employer gives the employee a copy of the executed agreement — section 14B(6).

Miss any of them and you are back in section 14B(1): null and void.

The people the employee can always talk to

Section 14B(7)(a) provides that an excepted agreement shall not prohibit a relevant disclosure to any of the following, where acting in the course of his or her office, employment, business, trade or profession:

• a member of An Garda Síochána
• a legal practitioner
• a registered medical practitioner within the meaning of the Medical Practitioners Act 2007
• a mental health professional — a psychologist or a counsellor, as section 14B(9) defines them
• an officer of the Revenue Commissioners
• an officer of the Ombudsman
• an official of a trade union

Section 14B(7)(b) lets the agreement name further individuals, or a class of individuals. That list is a floor, not a ceiling, and a well-drafted agreement adds the people the employee actually needs — a named family member, a support organisation.

It sits alongside the Protected Disclosures Act

Section 23 of the Protected Disclosures Act 2014 independently voids any provision so far as it purports to prohibit or restrict a protected disclosure, exclude or limit that Act, or preclude proceedings under it or for breach of contract in consequence of a disclosure. The two operate together: section 23 covers wrongdoing disclosures generally, section 14B covers equality complaints specifically.

A review is coming

Section 14B(8) obliges the Minister to review the operation and effectiveness of the section not later than five years after it came into operation, to report within six months of the end of that period or on completing the review, and to lay the report before both Houses. That is November 2029 at the latest.

What to do about existing agreements

An agreement entered into before 20 November 2024 is not retrospectively voided by section 14B, but the clause in it is very likely unenforceable in practice against a disclosure section 23 of the Protected Disclosures Act protects, and any attempt to enforce it invites the argument that the employer is penalising the employee. Do not send a letter relying on one without advice.

Our non-disclosure agreement blocks the void version, and drafts the excepted agreement with all seven conditions on its face. For commercial NDAs generally, see what a confidentiality agreement can and cannot do in Ireland.