EDA2550

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043308 (CA-00053570-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts,
1998 to 2015 on 30 April 2024. A Labour Court hearing took place on 20 May 2025.
The following is the Determination of the Court

DECISION:

Background to the Appeal

This is an appeal by Mr Chirag Vinod Malhotra (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00043308/CA-00053570-001, 8 April 2024) under the Employment Equality Act 1998 (‘the Act’). The Complainant alleges he was discriminated against on grounds of family status. The Adjudication Officer concluded that the complaint was not well-founded as no “discriminatory act [had] taken place having regard to the factual matrix of this case”. Notice of Appeal was received in the Court on 30 April 2024. The Court heard the appeal in Dublin on 20 May 2025.

The Complainant simultaneously appealed from two other decisions to the Court: CA-00053570-002 (a claim of penalisation under the Parental Leave Act 1998) and CA-00053570-003 (a claim of penalisation under the Parent’s Leave and Benefit Act 2019). These appeals were listed along with the within appeal but were withdrawn by the Complainant at the outset of hearing. Counsel for the Complainant sought leave of the Court to amend the penalisation appeals to claims under the Unfair Dismissals Act 1977. The Court, having explained that to grant the Complainant’s application in this regard would be tantamount to the Court unlawfully accepting first instance jurisdiction, declined the application.

The Factual Matrix

The Complainant commenced employment as a Business Development Manager with Allergy Standards Limited (‘the Respondent’) on 28 February 2022 on a salary of €65,000.00 plus bonus. His employment terminated on 21 October 2022.

A meeting took place on 5 August 2022 between the Complainant and Dr John McKeown, the Respondent’s CEO, at which Dr McKeown outlined his concerns with the Complainant’s work performance and sales performance. (A minute of this meeting was opened to the Court.)

The Complainant’s wife was expecting their second child in mid-September 2022. The Complainant notified the company on 7 September 2022 that he intended to avail himself of parent’s leave on specified dates between October 2022 and January 2023.

On 8 September 2022, the Complainant received a meeting request from his line manager, Mr John Ryan, for the following day. The request was entitled ‘H1 Review’. No agenda was attached to the meeting invitation. The meeting took places as scheduled. Dr John McKeown was also present. Following the meeting, on 9 September also, Mr Ryan wrote to the Complainant:

“Dear Chirag,

I refer to our meeting of earlier today where we discussed your sales outcome in H1, versus the agreed budget and targets.

As noted in our conversation we’re concerned about your ongoing failure to achieve your agreed sales numbers; in this context, we chatted about ‘next step options’.

I note you intend to take the weekend to reflect on our discussions and request that we meet on Monday at 11.15 to discuss the best option from here”.

Early on Monday 12 September 2022, the Complaint emailed Mr Ryan summarising his version of the discussions that had taken place during the meeting on 9 September 2022. He also enclosed a report which he stated demonstrated that he had, in fact, been responsible for “an incremental jump in sales-oriented activities (tasks, calls, meetings etc) and tasks created” since joining the company at the end of February 2022. He also stated that he had been asked to resign his employment at the H1 review meeting in return for “a package of 6 weeks compensation” and suggested that this was in reaction to his earlier request for parent’s leave.

Later that day, Mr Ryan replied as follows:

“Dear Chirag,

Firstly, I’d like to make very clear that any review meetings we schedule are completely separate and not related to your leave requests. Our concern is about your delivery of sales for the business, not about taking leave that you are fully entitled to take …

The meeting that had been planned for today at 11.15, for which you are now unavailable, was in order to set out next steps. To avoid any confusion on this, I am setting these out here.

As I said in my email, and in our meeting on Friday, we are concerned about your ongoing failure to deliver sales, and to deliver on agreed sales targets. I am attaching ASL’s disciplinary and grievance procedure here; we will be working according to this. The intention to (sic) this morning’s meeting was to give you a copy of these procedures, and make sure you are informed on the process and your rights in it. The first stage is a verbal warning, and we will be arranging a meeting to confirm this, and to agree a performance improvement plan with timeline. You have the right to state your case, and also to have another ASL employee of your choosing attend the meeting. You must inform us in advance if another employee will accompany you, and if so, who that person will be.

We would like to arrange this initial meeting for Monday 19th of September at 1400; it will be with Jennifer and I (sic).

Please note that any periods of leave, including paternity-related leave, are not included as part of any performance improvement timeline. So if we were for example to agree a four-week timeline for an initial performance improvement plan, and your paternity leave started two weeks later, the performance improvement plan would run for two weeks before your paternity leave, be suspended for two weeks while you are on leave, and recommence for two further weeks upon your return.”

The Complainant’s second child was born on 16 September 2022. It appears that the meeting Mr Ryan had suggested in correspondence would take place on 19 September actually took place on the following Wednesday, 21 September 2022. It was attended by the Complainant, Mr Ryan and Mr Nick Barry (the Respondent’s Chief Finance Officer).

On Wednesday 21 September 2022, following their meeting earlier that day, Mr Ryan wrote as follows to the Complainant:

“Dear Chirag

Further to our meeting just now, I wish to confirm that your employment is being terminated.

In accordance with your contract of employment you are entitled to one month’s notice which commences today. You are not required to work during this period and will be placed on garden leave. Your last date of employment will be 21 October 2022.

In addition to the above and as a gesture of good will, the company will top this up by another 1.5 months payment (2.5 months in total) to support you transitioning to a new role. This payment of an additional 1.5 months is subject to you signing a waiver and release which I will provide you under separate cover.

You are required to return all company property, including your company laptop immediately.”

On 23 September 2022, the Complainant sent a lengthy email to Ms Jennifer Whelan, the Respondent’s Chief Operating Officer, setting out his version of the interactions he had had with Mr Ryan from early September. He also stated:

“I want to trigger the grievance procedure & prefer if you make me redundant to offer me a non-negotiable severance package equal to 6 months of my pay, along with a letter promising to not try and tarnish my name. This gives me also enough time to find a new job as I never saw this coming before requesting paternity and parents leave”.

The Complaint

The Complainant included a very lengthy narrative in his complaint form to the Workplace Relations Commission (received 6 November 2022) in support of his complaint of discrimination on the family status ground. The complaint refers in some detail to the events and communications summarised above in the factual matrix section of this determination. The Complainant summarised his complaint as follows:

“Just because I was exercising my right toward paternity and parents related leaves, I was bullied, harassed and discriminated and unfairly dismissed, all this just at the time my son was arriving into this world, I was going through the trauma and mental distress caused by Allergy Standards Limited, a gorgeous boy was born on 16th September 2022 and after 6 days I was unfairly terminated causing severe stress to me and family during these happy times. Instead of focusing on my son’s arrival and helping in the house I had to instead focus my attention in applying for new jobs affecting me and my entire family thereby.”

The Complainant’s Evidence

The Complainant summarised his period of employment with the Respondent from 28 February 2022 until he received notice of termination on 21 September 2022. He told the Court that as Business Development Manager he understood that his role was to find clients for the business. He said he was not provided with any training by the Respondent. He also said that, in his opinion, the Respondent had no strategy to grow the business and was only interested in creating a good impression for Enterprise Ireland from which it received funding. The Complainant’s evidence was that he never received sales targets and there were no metrics in place to measure company performance. He also told the Court that he had received ‘zero support’ from senior management during his employment with the Respondent.

His evidence then moved to his applications for statutory leave and the meetings that took place with Mr Ryan and others to review his performance.

Burden of Proof

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Discussion and Decision

The Court, having carefully considered the Complainant’s written submissions and his oral evidence, concludes that he has not established any facts from which an inference that he was discriminated against on grounds of family status, or at all, contrary to the Act. The Court finds, having regard to the written communications that took place between the Complainant and members of the Respondent’s management team, commencing some time before the Complainant’s son was born on 16 September 2022, the Respondent had significant concerns about the Complainant’s performance in his role as Business Development Manager. Although a part of the process through which the Respondent sought to engage with the Complainant about his performance coincided with his applications for protected leave and the subsequent birth of his child, it does not follow that the birth of his child or his application for statutory leave was a causative factor in the Complainant’s termination. The Court is satisfied that the operative reason for the Respondent’s decision to dismiss the Complainant was his poor performance.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
CC	______________________
4th June 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Ceola Cronin, Court Secretary.