If you’re an employer hiring in Ireland, you’re likely intending to use a non-disclosure agreement (NDA) to ensure your new employee keeps sensitive company information confidential.
However, as in many countries across the European Union and the British Commonwealth, NDAs have recently come under scrutiny by the Irish authorities. In 2021, the Irish government passed The Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021, which restricts the use of NDAs to prevent them from being used to cover up harassment and other criminal activities in the workplace. We’ll take a deep dive into this bill later on.
As an employer, you’re likely wondering: Are NDAs enforceable in Ireland? How can you use non-disclosure agreements to protect yourself and your employees across the globe? This guide will answer these questions and more.
(Note: This guide is for informational purposes only. It is not intended to provide legal advice.)
What is an NDA?
Let’s start by defining an NDA. Simply put, an NDA (also known as a non-disclosure agreement or a confidentiality agreement—these terms are used interchangeably) legally prohibits signatories, such as employees and solicitors, from disclosing sensitive information to third parties.
In a workplace, non-disclosure agreements ensure things like trade secrets, know-how that’s crucial to company success, and intellectual property are protected from third parties and competitors. However, as mentioned earlier, The Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 prevents employers from forcing employees to sign NDAs when the latter has been the victim of sexual harassment, discrimination, and other serious violations in order to keep them from alerting the proper authorities.
The Bill is far from finished, and Irish lawmakers are deciding exactly what situations fall under its purview. So far, it’s safe to say that using an NDA to silence a sexual assault survivor will absolutely be included in the final bill. While the legal process is slow, you should expect changes in the way employers can use NDAs over the next few years.
Are non-disclosure agreements enforceable in Ireland?
The short answer is yes—under certain circumstances, Irish courts have upheld NDAs as enforceable. Before you rejoice, however, there are a few things you should know about NDAs and Irish law:
- NDAs must meet certain requirements for them to be considered both legal and ethical (more on that below).
- Public and political attitudes towards NDAs have changed in recent years in Ireland, especially once it became clear employers were using them for unethical purposes. In Ireland particularly, it’s important to consult a solicitor to ensure you stay up to date on the rapidly changing regulations surrounding NDAs (again, more on this later).
You can generate NDAs, offer letters, and any other documents you need, then easily send them out for e-signature—all through Rippling.
3 things you need to know about NDAs in Ireland
1. There are different types of NDAs
There are three different types of confidentiality agreements you should expect to encounter in Ireland:
- Unilateral NDAs. Also known as one-way confidentiality agreements, where one party is disclosing information to another party. Unilateral NDAs are commonly used in employer-employee relationships. Generally, the employee signs an employment contract stating that they will not repeat any confidential information to anyone else before the conversation begins.
- Bilateral NDAs. Bilateral NDAs are also known as two-way NDAs. In this arrangement, both parties are sharing trade secrets and other confidential information with each other.
- Multilateral NDAs. In this situation, at least one individual is considered the disclosing party and discusses confidential information with three or more parties. This might occur in a business meeting with multiple investors or with an investor, financial advisor, stakeholder, and/or a solicitor.
2. There are essential components Irish non-disclosure agreements should include
These are the things that an NDA should include to be comprehensive and enforceable:
- The type of NDA. As mentioned in the section above, there are three different types of NDAs in Ireland. Specify which one yours is, and also clearly indicate the names and roles of the parties involved. Who is the disclosing party? Who is the receiving party?
- Definition of confidential information. Be specific about what shared ideas and information are confidential. Commonly, such information includes intellectual property, trade secrets, know-how, customer information, financial information, and business plans, to name a few.
- A clearly stated purpose. Be very specific about the purpose of the NDA , as well as its scope. If you are too vague, you might find not all of your confidential information is protected. You can always widen the scope later.
- Terms of the agreement. Clearly state how long the NDA lasts. In Ireland, non-disclosure agreements are generally enforceable for three to five years.
- What will happen if the NDA is breached. It's a good idea to include provisions that outline any injunctions, damages, or other consequences for breaching the NDA.
For extra protection, some business owners choose to include a non-circumvention clause. This adds a further layer of protection by ensuring that no matter what confidential information you share with another party, they cannot go behind your back and disclose it to their own contacts.
3. Irish lawmakers are taking a serious look at NDAs and still amending their use
As mentioned earlier, in 2021, Irish lawmakers enacted The Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021. As of 2022, the bill is currently being reviewed by the Orieachtas, which, to put it in the simplest terms, is an assembly of free people who help make regulatory decisions for the Irish Free State.
When would an employee or contractor sign a non-disclosure agreement?
Have your employee or contractor sign a confidentiality agreement before you disclose any sensitive information. It’s really up to the company to decide when to do this: You might want to have them sign the agreement during the onboarding process, when they receive their employment contract, or even include it as a confidentiality clause in their new hire offer letter.
Frequently asked questions about NDAs in Ireland
Are NDAs enforceable in Ireland?
Yes. So long as they meet the legal requirements set forth by the Irish authorities and are not used to silence employees who have been subject to abuses like sexual harassment or witnessed abuse at the hands of their company, non-disclosure agreements are enforceable in Ireland.
Are non-disclosure agreements enforceable overseas?
This is a slightly more difficult question to answer, since only some countries recognize and enforce foreign judgments. Furthermore, whether your NDA can be enforced in Ireland depends on the specific terms of the agreement, as well as Irish laws.
To avoid headaches, such as having your case thrown out simply because the wording wasn’t specific enough, when you’re drawing up the confidentiality agreement, you and your employee should agree which country’s laws and jurisdiction the NDA will be subject to ahead of time.
What information can be covered by an NDA?
Here’s a quick rundown of the information that can be covered by a confidentiality agreement in Ireland:
- Original ideas that were generated by you or the employees at your company
- Trade secrets, including designs, technical drawings, and technology that are unique to a company and provide it with a competitive advantage
- Customer information, including contact info and other customer data, such as lists of their purchasing histories
- Business plans, including budgets, plans for future expansion, financial information, ideas to make the company more competitive, unique advertising campaigns, copyrighted content, and so on
Remember: The Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 prevents employers from forcing employees to sign NDAs when the latter has been the victim of sexual harassment, discrimination, and other serious violations in order to keep them from alerting the proper authorities.
When should you use a non-disclosure agreement?
In Ireland, it’s recommended you use a confidentiality agreement in the following situations:
- When an employee resigns from your company
- When you’re considering purchasing a business or selling your company
- When financial information is being shared with a potential partner or investor
- When sensitive company information is shared with an employee or contractor
- When proprietary, trade secrets or confidential information is shared with an employee or contractor
- When customer information is shared with an employee or contractor
- When you’re pitching an invention or idea to stakeholders, investors, partners, or even employees
- When you’re sharing information about your technology–whether it’s intellectual property, proprietary information, or know-how with stakeholders, employees, or partners
- NDAs are often used in the context of mergers and acquisitions, to protect the confidential information of both parties involved in the transaction.
Rippling makes it simple to create and send out an NDA as part of a job offer package.
Is an NDA the same as a confidentiality agreement?
Yes. NDAs, confidentiality agreements, confidential disclosure agreements (CDAs) and proprietary information agreements (PIAs) are all the same thing in Ireland. The Irish even sometimes refer to NDAs as secrecy agreements.
Is an NDA the same as a non-compete agreement?
No. Unlike a confidentiality agreement, which prevents proprietary and sensitive information from being shared with third parties, non-compete agreements bar employees from engaging in competitive activities, such as accepting a position at a company that is your direct competitor, for a certain period of time.
In Ireland, non-compete agreements are generally not enforceable after six months.
Benefits of confidentiality in Ireland
Don’t skip signing an NDA with an employee, stakeholder, partner, solicitor, or similar parties: Non-disclosure agreements have a lot of benefits. Not only do they protect your confidential information, proprietary assets, and intellectual property, but they also provide you with legal recourse should the disclosing party be unlawfully shared and cause harm to your business.
What happens if a non-disclosure agreement is breached?
Unfortunately, once an NDA has been breached, it’s impossible to undo the damage caused by the breach of contract. One of your options is to seek independent legal advice and have a solicitor help you obtain an injunction to ensure more information isn’t leaked.
A second option is to sue the disclosing party for the harm they caused, as is your right under Irish employment law. As mentioned earlier, the consequences for a breach of contract should be spelled out in the original NDA, but the onus is on you to prove that the disclosing party actually broke the law.
The bottom line? Don’t try to do this yourself. Hire an Irish solicitor and have them review your case and make their recommendations.
Run your global workforce in Ireland with Rippling
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Rippling and its affiliates do not provide tax, accounting, or legal advice. This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for tax, legal, or accounting advice. You should consult your own tax, legal, and accounting advisors before engaging in any related activities or transactions.