Set to come into force on the 1st of January 2027, Act X of 2026 introduces new protections for persons seeking employment following recovery from an oncological disease. The Act requires employers, once the applicable statutory period has elapsed, to refrain from taking a previous oncological diagnosis into account in a manner that may dissuade, impede or prevent access to employment, or otherwise affect the terms of the employment relationship.
The scope of the Act is not limited to contracts of employment. Its protections also extend to contracts of service and financial services agreements, thereby providing a broader framework for the right to be forgotten following recovery from an oncological disease.
Defining Contracts and Agreements
The terms contract of service and contract of employment refer to any agreement, whether oral or written and regardless of form, under which a person undertakes to provide services or perform work for an employer in return for wages. For the purposes of conditions of employment, the definition also extends to apprenticeship agreements. However, service as a member of a disciplined force is excluded, except where otherwise provided for under the Employment and Industrial Relations Act (Cap. 452).
Importantly, the legal characterisation of the relationship does not depend solely on how the parties describe it. Unless otherwise specifically provided by law, the Act, or regulations made under it, where an employer exercises effective direction, control and choice over the nature of the work or the tasks to be performed, the relationship is to be treated as a contract of service and the person performing that work is deemed to be an employee.
Accordingly, it is not the contractual label attributed to an individual which is determinative of employment status. Rather, regard must be had to the substance of the relationship between the parties, particularly the extent to which the employer exercises effective direction and control, as well as choice over the nature of the work or tasks to be performed.
The Act also extends beyond the employment context to financial services agreements, defined as including life insurance contracts, bank loan agreements and any contracts or agreements ancillary thereto. Where the applicable statutory period expires after such an agreement has been concluded, the recovered person’s medical history may no longer be taken into account. Where that information continues to be retained, it must be anonymised and the recovered person must be notified accordingly.
The Right to Be Forgotten in the Employment Contract
Article 3 establishes the right to be forgotten by providing that, once the applicable statutory period has elapsed, a recovered person’s medical history may not be requested, considered or used to dissuade, impede or refuse access to a contract of employment or contract of service, to impose more onerous conditions, or otherwise to affect the content of such a contract.
The Act establishes a general period of ten years from the end of treatment without relapse. Where the person was diagnosed before the age of 25, that period is reduced to five years.
For the purposes of calculating these periods, the end of treatment is determined by reference to the last active treatment under the applicable medical protocol.
Medical History and Recruitment Practices
The Act adopts a broad definition of medical history in relation to oncological disease. The term encompasses medical records concerning the diagnosis and treatment of an oncological disease, including records predating the diagnosis where these relate to the relevant testing. It also extends to follow-up medical examinations, tests and results carried out after the end of treatment, insofar as these remain connected to the oncological disease.
Significantly, the definition is not limited to formal medical records. It also encompasses any inquiry, request or disclosure, whether oral or written, concerning whether a person has previously been diagnosed with or treated for an oncological disease. In the employment context, this broad formulation is particularly relevant to the manner in which employers seek and process information during recruitment, pre-employment medical assessments and occupational health procedures.
The Act further restricts the manner in which such medical history may be obtained. Where the established period has elapsed, medical history which is known or otherwise available to an employer may not be considered or used to refuse access to employment, impose more onerous conditions or otherwise affect the content of the employment contract. Employers should therefore consider whether existing practices require applicants or employees to disclose information concerning previous oncological conditions and whether such requests remain permissible once the applicable statutory period has elapsed.
The new regime may also require employers to review the manner in which medical information is recorded, accessed and used within HR and occupational health processes. In particular, recruitment documentation and internal procedures should be examined to ensure that a previous oncological disease is not taken into consideration in a manner prohibited by the Act once the individual has acquired the right to be forgotten.
Existing Employment Relationships and the Expiry of the Relevant Period
The Act expressly addresses employment relationships entered into before its commencement. Where a recovered person’s medical history was requested upon entry into a contract of employment or contract of service before 1 January 2027 and remains held by the employer, that information must, following the expiry of the established period, be anonymised and the recovered person notified in writing. In particular, once the relevant period has elapsed, such information may not be relied upon to impose more onerous conditions or otherwise affect the content of the contract of employment or contract of service, or the financial services agreement.
It is also expressly provided that responsibility lies with the recovered person to notify the other party that the relevant five- or ten-year period has elapsed. This notification is therefore an important practical step in ensuring that the protections under the Act are applied to an ongoing employment relationship.
Where there is uncertainty as to the date of diagnosis or the end of treatment, the matter may be referred to the Review Board (as explained hereunder), which is empowered to determine the relevant dates. This may be particularly important where the expiry of the statutory period has consequences for the continued use or retention of an employee’s medical history.
Invalid Contractual Provisions
Any contractual provision which is contrary to the Act is deemed null and void. Employers should therefore ensure that employment contracts, workplace policies, recruitment documentation and standard HR forms do not contain terms which undermine the protections afforded to recovered persons. The invalidity of such provisions does not prejudice or limit the rights granted to the recovered person under the Act and does not invalidate the contract as a whole.
The Review Board
The Act establishes a Review Board with responsibility for determining, where necessary, the date of diagnosis and the date on which treatment ended. The Board may also recommend the review or reduction of the applicable statutory periods in relation to particular oncological diseases.
Proceedings before the Review Board are to be treated confidentially, and the Board is empowered to take decisions on matters falling within its competence. For the purpose of carrying out its functions, it may access relevant medical records held by both public and private entities.
Employer Compliance and Penalties
Failure to comply with the Act may result in a fine ranging from €500 to €5,000. A continuous breach may also attract a daily penalty of between €10 and €100 for as long as the breach persists.
In view of these potential sanctions, employers should review their recruitment practices, employment documentation, HR procedures and processes for handling medical information before the Act comes into force on the 1st of January 2027. Particular attention should be given to how information relating to previous oncological conditions is requested, retained and used.
Preparing for the New Employment Law Obligations
Employers should use the period preceding the Act’s entry into force to review their employment contracts, recruitment documentation and internal policies. Existing questions concerning medical history should be reconsidered to ensure that they comply with the new right to be forgotten.
HR and occupational health procedures should likewise be updated, particularly in relation to the collection, retention and use of oncological medical information. Staff involved in recruitment, HR and employee administration should be made aware of the new restrictions and the applicable five- and ten-year periods.
Employers should also establish clear internal procedures for dealing with notifications from recovered persons once the relevant statutory period has elapsed, including the appropriate treatment of any medical information already held.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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