Just over a year ago the Employment Appeal Tribunal issued its decision in Lofty v Hamis t/a First Café  and in its wake there was a lot of online discussions about whether precancerous conditions come within the deemed disability provisions of the Equality Act 2010.

Normally, in order to be a disability for the purposes of the Act a worker must show that the physical or mental impairment substantially affects their normal day to day activities and that it has or is likely to last for 12 months or more. However, the Act recognises three conditions, Cancer, HIV and Multiple Sclerosis, that are automatically a disability regardless of whether at that time the other elements of the disability definition are met.

From a worker representative’s point of view this this will mean that so long as the diagnosis can be demonstrated then the employer will have no basis for disputing disability and so the task of moving to the question of whether discrimination occurred or reasonable adjustments are required is less problematic.

The case of Lofty concerned  whether a precancerous condition came amounted to a cancer. In 2014 the claimant became aware of a skin blemish on her cheek. This was diagnosed as lentigo maligna. The advice of her medical practitioners variously descried this as precancerous lesion or a non malignant in situ cancer. In other words, the examination identified that there were cancer cells resent but this was not at the time at risk of spreading although they may  develop into a lesion malignant melanoma (a skin cancer). The Employment Tribunal that heard the case determined that since her condition is precancerous it was not yet cancer and so not a deemed disability.

It was this decision that was challenged in the EAT. In overturning the employment tribunal’s decision the EAT note that paragraph 6 of schedule one of the Equality Act (which lists cancer as a deemed disability) does not distinguish between invasive and noninvasive cancer. The fact that the claimant had cancer cells present was sufficient to mean this was cancer, regardless of whether oncologists referred to these as precancerous because they were not invasive.

However, a reading of the judgement makes the suggestions of many law firms headlines that precancerous conditions are deemed disabilities is false, there are many precancerous conditions and it is not clear all will satisfy the standard set out in Lofty. Nonetheless, I think it can confidently be stated that if there are cancer cells present then that person will be disabled under the Equality Act.

What does this mean for workers and representatives?

There are I think a couple of points worth commenting on.

First, where there are cancer cells present then the person will (at the relevant time) be disabled and so any sickness or performance issues associated with this such as sickness leave flowing from surgery are likely to require reasonable adjustments (for example, treating post operative convalescence as disability leave).

Second, while not every precancerous condition is cancer this is a difficult area relying on specialist reports of biopsies and similar reports and it is probably helpful to argue the point, as many employers will reasonably take a cautious approach and consider disability likely.


PCS Union AGS Election

PCS Union will hold an election for the union’s one Assistant General Secretary post in 2019.

This morning the results of the election to determine who would be Left Unity’s nominee as PCS’ Assistant General Secretary were released, with Chris Baugh being the elected candidate (subject to any appeals, etc).

Those who have followed the election will know this follows a protracted and strongly contested process. Chris Baugh, the current AGS post holder was challenged by PCS President Janice Godrich. Godrich in fact won that election late last year but for personal reasons  withdrew her candidature. A new Left Unity candidate, Stella Dennis, put herself forward and this morning it was confirmed that Chris Baugh won the Left Unity nomination by a small margin.

Therefore, there are now three declared candidates the election later this year, although there is of course time for additional candidates to put themselves forward.

Chris Baugh, the current PCS Assistant General Secretary will be running on the Left Unity slate. Chris’ statement released when his candidacy was first announced is here.

Lynn Henderson, currently a National Officer of the union and President of the Scottish TUC  is the only candidate not running a slate. There is a launch video and statement available here.

John Moloney, is a lay activist and running on the PCS Independent Left slate. John’s election platform is set out here.

Inadequate Enquiries

Occupational Health advice is a means by which an employer can seek medical advice from qualified persons (usually a Dr or nurse) on what a medical issue is likely to mean for an employee in respect to their work. For example,  how it the medical condition will affect attendance, how it will impact performance or the ability to perform certain job aspects, and whether there are likely to be any adjustments the that would help both the employer and employee to reduce disadvantage and increase productivity.

To give a typical situation an employee is on long term sickness absence and the employer requests advice to help them make a decision as to the reason for absence, whether it is linked to work, and estimated timescales in which the employee can be expected to be fit to return to work, or, if not, whether ill health retirement is occupational pension scheme that allows this.

In my experience most of the time employers are keen to make a request for advice since it provides independent advice on factors managers are not qualified on that allow them to make informed choices. Push back to the suggestion is more likely to come from employees concerned they need to disclose confidential information, that they are being set up to fail, or that they don’t like the questions that are being proposed. By and large my role has been to convince the employee that the OH referral is also in their as well as their employee’s interests.

However, more recently I have encountered a few occasions in which an employer has been resistant to making an OH advice request. I find this reluctance perplexing as, if nothing else, an OH advice request provides a manager with evidence they are taking an issue seriously and also, if they follow any advice, a likely defense to any future allegations of bad faith decisions and it is hard to think that the reticence is anything other than a penny-pinching measure.

Most reasonable HR sickness or disability policies will recommend that where there are health issues engaged that may affect attendance, performance or discipline then advice should be requested. But aside from potentially being evidence an employee could use in an appeal that an employer did not follow its own guidance the recent decision of  DL Insurance Services Ltd v O’Connor [2018] UKEAT 0230_17_2302 also shows  that when a disability is involved it can be useful evidence in a discrimination arising from disability  claim.

In O’Connor the claimant was absent for 65 days in a calendar year, understandably this level of absence was a concern for the employer. The employer’s policy required that before a decision on whether to issue a warning was taken the employer should either obtain medical advice from the GP or seek OH advice. The employer issued the warning but did not seek any advice from OH before doing so and this failure to follow the employer’s own policy was a key factor in its determination that the issue of a warning amounted to discrimination arising from disability.

On appeal the EAT did make clear that there is no checklist in operation and that a failure to follow a policy will not always lead to a finding of discrimination:

In my judgment, the correct summary of the ET’s reasoning in relation to the procedural failure is that the ET were not saying that the Respondent had failed to show the treatment was a proportionate way of achieving a legitimate aim because it breached its Policy. Rather, what the ET were saying was that the Respondent could not show that the treatment was a proportionate means of achieving a legitimate aim because the Respondent has not produced specific evidence to show that, and that that failure to produce specific evidence might have been because it breached its Policy.

The EAT went on to consider, as the ET had done previously, paragraph 5.12 of the EHRC Employment Code, which says that in showing that the treatment was a proportionate means of achieving a legitimate aim

It is for the employer to justify the treatment. They must produce evidence to support their assertion that it is justified and not rely on mere generalisations.

For the ET, and affirmed by the EAT, it was not so much the fact that the employer had failed to follow its policy that rendered the employer’s actions disproportionate but that there was no specific enquiries and just reliance on generalisations. This failure meant possible adjustments or other solutions were simply not explored.

O’Connor does strike me as a useful case to use to remind employers that knee-jerk resorts to warnings without serious examination of alternatives can result in findings against employers of discriminatory conduct.


Holiday Pay: Use it or Lose it?

One issue I have found myself advising workers on more and more recently is on the subject of holiday pay, specifically whether an employee should be compensated for any holiday she has not been able to take because of her long term absence from work. It has also become a check I take on all cases when a member has been dismissed, again especially when a member has been absent and is dismissed for sickness absence reasons.

The holiday that is relevant here is not a worker’s entire contractual holiday allowance but the 20 days a year that is guaranteed by the EU Working Time Directive (WTD). There have been numerous cases that are helpful to employees that allow a worker’s annual leave allowance to be carried over into subsequent years on the basis that because a worker could not take leave in a particular year then that carries over (meaning of course that if they return they have a lot more annual leave or, if they leave employment they can make a claim for the unpaid holiday pay).

These cases have focused on those who been unable to take leave because of sickness and it has generally been assumed that if a worker can take the leave but does not do so then the entitlement is lost and can not get carried over. In Max-Planck-Gesellschaft v Shimizu the CJEU (EU Court) has provided a helpful correction to that view.

Prior to his departure from his employer Mr Shimizu had taken limited annual leave in the preceding two year, only two days in fact. In the week before he left employment Mr Shimizu asked his employer for compensation for 51 days taken annual leave over the previous two years (called an “allowance in lieu”) but this was refused – the employer taking the view that Mr Shimizu had been able to take the leave and just did not do so.

The German court made a preliminary reference to the CJEU on the interpretation of Article 7 of the WTD. Article 7(1) requires that

Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

Article 7(2)  also clarifies that

The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

The CJEU recognised that workers are the weaker party in an employment relationship and could be dissuaded from taking leave – even if not actively obstructed – for many reasons. The court determined that in cases where there is no sickness absence it is still not the case that a worker will automatically lose entitlement to holiday if he has not taken this. Whilst it is the case that entitlement to the leave can cease at the end of a leave year this will only apply if the employer can prove that they have given the worker every opportunity to take the leave in advance of the end of the year leave. Therefore, the burden will now be on an employer to show that they have encouraged and facilitated the exercise of a worker’s holiday rights rather then on the worker to show that they could not take the leave.

What does this means for EU workers

For workers in EU member states the implications of this judgement are significant and helpful in two ways.

For workers of private (non state) employers the WTD is not directly effective, this means a worker cannot rely on the WTD in any legal claims for breaches of their individual rights. Instead the member state (e.g., the UK) must pass regulations to implement the WTD into domestic law, this was done in the UK through the Working Time Regulations 1998.

Domestic regulations must now be interpreted with this judgement in mind so that domestic courts should now allow claims from former workers on the basis that they dd not take their full WTD holiday pay before they ended their employment – and if you are such a worker who has ended their employment in the last few years it might be worth your while to seek legal advice on whether you can now pursue a claim.

Interestingly however, if courts are not amenable to interpreting holiday pay regulations consistently with this judgement or the regulations are contrary to this a worker may not need to wait to bring a claim until the regulations are changed or face bringing action against the member state itself in EU proceedings. Max-Planck-Gesellschaft v Shimizu also made clear that holiday pay is a constitutive element of Article 31(2) of the Charter of Fundamental Rights of the European Union which states

Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.

The significance is that the Charter is directly effective, this means it is a right that does not depend on further legislation or action by the member state but can be relied upon as it is by a worker in any legal action (including in an Employment Tribunal). And so, in the case of the actual complainants while it is likely that German labour law was incompatible with both the WTD and Article 31(2) even if the German Goverment were not to act on this finding that would not change the right of every German worker (or other EU worker for that matter)  from seeking unpaid holiday pay, irrespective of whether they were employed by a public authority or private employer.

What this means for UK workers

As it stands the judgement means the same for UK workers as any other EU worker. For UK workers they can, while the UK remains an EU member, make a claim in UK courts directly relying on Article 31(2) of the Charter or relying on the CJEU interpretation of Article 7 of the WTD to interpret the UK Working Time Regulations (in this case section 13(9)(a) of the WTR 1998).

Brexit is of course a volatile subject and who knows what will change between now and Brexit day. Based on the current situation the fact that this interpretation is based on  direct EU legislation and takes place before Brexit day then this will be binding on UK courts and tribunals even in the event of a no-deal by the application of section 6(1) of the European Union (Withdrawal) Act 2018 although Supreme Court will not.

Therefore the EU Withdrawal Act does indeed mean that EU case law that was promulgated before Brexit day will remain binding on court and tribunals, meaning this holiday pay judgement will too. However, it does introduce some uncertainty in that the when faced with a question the Supreme Court, unlike other courts and tribunals will not be bound to follow EU case law. And so, for the short term at least, this judgement will remain applicable to UK workers as it relates to the WTD.

Unfortunately, while the WTD will continue to apply it seems very unlikely that the Charter for Fundamental Rights will. Of course, since the WTR have long been the subject of Conservative sabre rattling it is not hard to imagine that if they have their way  that days of holiday pay as we know it may well also be numbered.


Salmond, Natural Justice, and Unfair Employer Misconduct Investigations

If you are a trade union representative one of the go to arguments you will often employ is that the employer is acting contrary to natural justice. Natural Justice can be summarised as comprising of two components: 

  • That a person accused of wrongdoing will be told what exactly they are accused of, given the chance to provide a defence,  reasonable time to prepare, be provided access to the evidence against them before a decision on whether they are responsible for the misconduct is made.
  • That the investigation and misconduct will be taken by persons who are impartial and have not been previously involved in any investigations.

That, broadly stated, is all that natural justice requires.

Natural justice has recently hit the headlines in the context of Alex Salmond, the former SNP leader, and his Judicial Review against the Scottish Government.

A year ago, in the wake of the #metoo movement two sexual harassment complaints were made against Mr Salmond regarding his time in government. The government, quite properly, launched an investigation into the allegations. The Permanent Secretary Leslie Evans (head of the Civil Service for the Scottish Government) appointed an HR investigator to investigate the allegations. However that HR Officer had already had some involvement in the concerns and had spoken to the complainants about the matters some time earlier. 

The Court found this was a very serious procedural error, that amounted to a breach against Alex Salmond’s natural justice rights, specifically the right of accused to be subject to an impartial investigation without the appearance of bias. Instead, having been investigated by an party with previous knowledge and involvement of the matter at hand the court took the view that this was a fundamental error and, in so doing, the results of the investigation could not stand. In making the judgement the court did not find Alex Salmond had not engaged in sexual harassment but that any investigation that had been undertaken could not stand because of bias. 

The court, in my view were right to do so in recognition of the rule of law and the need for fair processes to be scrupulously applied to all. If there was a view that a quick investigation could resolve the matter then the Scottish Government made a serious error because, as the Guardian notes, this error has caused harm to the government’s reputation and should further complainants contemplate coming forward they may now be dissuaded from doing so. The judgement of the court recognises that its requirement to apply the rule of law would make it prejudicial to allow a procedural unfair investigations to stand and to dissuade the investigators from pursuing arbitrary investigations in the future. 

What then does this mean for employment investigations? One would think, that the Employment Tribunal would take a similar approach, especially given the centrality of rule of law considerations in the Supreme Court’s recent consideration of employment justice in R v Unison (the ET fees case); such a view is false, however. In fact, the court of Appeal have expressly stated that the principles of natural justice do not form a basis for an appeal that an employee was unfairly dismissed. In Slater v Leicestershire Health Authority [1989] IRLR 16 it was determined that: 

[Counsel] for the appellant relies principally on the general principle that a person who holds an inquiry must be seen to be impartial, that justice must not only be done but be seen to be done, and that if an observer with full knowledge of the facts would conclude that the hearing might not be impartial that is enough. . . I accept both the general rule and the exceptions [the example given was a one man firm]. The rules of natural justice in this field do not in my view form an independent ground upon which a decision may be attacked, although a breach will clearly be an important matter when the [Tribunal] consider the question raised in s[98(4)] of the Act.’

I think this is wrong. Why should the remedy in public law whereby a serious procedurally unfair investigation results in that investigation being quashed not have a similar counterpoint in employment law, for example that any dismissal reliant on an unjust investigation will be unfair. Similar public policy arguments would apply such that such a remedy would encourage employers to invest appropriate due diligence in misconduct investigations so as to prevent errors and also dissuade employers from pursuing arbitrary investigations for certain staff (it is a rare trade union victimisation case, for example, that will not involve an employer pursuing overblown or trumped up disciplinary accusations against them in order to rid themselves of a troublesome (aka effective) union rep).

Instead,  the employment law rather than adopting the rule of law approach seen above has required an additional requirement, as Slater itself set out in the excerpt above. Not only must there be a serious procedural breach of justice but the employment tribunal must consider whether this breach amounts or contributes to a separate breach of section 98(4)  Employment Rights Act 1996, namely that the conduct of the employer was outside the range of reasonable responses.

One obvious counter-argument is that the requirements of natural justice in an employment context are summarised in the ACAS Code of Practice on Disciplinary and Grievance Procedures  and a failure to follow these may give rise to a successful unfair dismissal claim. This is true, and many, if not most, serious procedural breaches of natural justice will be found to be unfair dismissals. This is not adequate in my view. First, unfair dismissal is only an option for a segment – and ever decreasing segment – of the UK workforce, being those who are employees and also those with two years continuous service. Second, there is no necessary correlation that breaches of natural justice will result in an unfair dismissal

The recent decision in Hargreaves v Manchester Grammar School is a case in point. A teacher was accused of misconduct, and the school investigated this and obtained numerous witness statements. Three of this gave evidence that persons present had witnessed nothing untoward but the employer did not disclose these the the teacher. The teacher was in due course dismissed.

Natural Justice would require that evidence against an alleged wrongdoer should be disclosed, but so should evidence that is potentially exculpatory. In Hargreaves the teacher understandably complained that the employer had kept evidence from him that could point his innocence from the accusation and that this was a serious breach of natural justice. However, despite the employer’s deliberate decision to exclude evidence from Mr Hargreaves, and thereby depriving him of the opportunity to make submissions to the decision maker on the basis of these statements the Employment Appeal Tribunal   affirmed the Employment Tribunal’s decision that because the decision was not outside the range of reasonable responses the employer’s investigation was fair.

And so we are left with the position that an employer has deprived an employee under suspicion of wrongdoing the opportunity to make focused submissions to the employer on how the evidence the employer had gathered pointed towards his innocence on the basis that the employer decided it would not assist the employee based on their understanding of the employee’s case. And, having done so, the employer can point to the EAT’s decision as vindication of the employer’s (mis)conduct.

It probably is true that had the employee had sight of the statements the outcome would have been the same but that is not the point. The issue is, like the decision in Alex Salmond’s case investigations should appear to be and appear to be impartial, they should not endorse an investigator’s decision to tie an accused employee’s hands and prevent the opportunity of presenting as effective a defence as possible. Unfortunately, unfair dismissal law in departing from rule of law approach does not do this and so offers inadequate incentive to employers  to be irreproachable in their conduct of investigations. If one were to ask Leslie Evans I doubt she would express the same view in respect to administrative law.

Discriminatory Dismissals and the Band of Reasonable Responses

In the 2017 case of O’Brien v Bolton St Catherine’s Academy the Court of Appeal considered the question of whether the test of whether a discriminatory dismissal under section 15 of the Equality Act 2010 was necessarily an unfair dismissal.

The key issue was whether the test as to whether a dismissal was “a proportionate means of achieving a legitimate aim” was the same as the test for unfair dismissal in section 98(4) of the Employment Rights Act 1996, what is commonly referred to as he band of reasonable responses test.

In the original Employment Tribunal hearing after having reviewed the processes that led up to dismissal of a disabled employee for reasons relating to her disability the Tribunal declared that:

Any reasonable employer would have conducted the appropriate balancing exercise required of it under s15 Equality Act before reaching the decision to dismiss, before upholding that decision on appeal. Both panels, at the Medical Incapacity Hearing and at the Appeal hearing, failed to carry out that balancing exercise. The respondent was well aware that the claimant was a disabled person within the meaning of the Act. In all the circumstances we find that dismissal fell outside the band of reasonable responses because it was a discriminatory act

The Tribunal found therefore that “because” the dismissal was discriminatory (and therefore unlawful) it was outside the band of reasonable responses and, therefore, also an unfair dismissal. The fact of the case do, to me, give me pause as to whether the dismissal really was discriminatory and this decision was reversed by the EAT.

What is of interest to me is is the determination by Underhill LJ in paragraphs 53-54:

However the basic point being made by the Tribunal was that its finding that the dismissal of the Appellant was disproportionate for the purpose of section 15 meant also that it was not reasonable for the purpose of section 98 (4) … I accept that the language in which the two tests is expressed is different and that in the public law context a “reasonableness review” may be significantly less stringent than a proportionality assessment (though the nature and extent of the difference remains much debated). But it would be a pity if there were any real distinction in the context of dismissal for long-term sickness where the employee is disabled within the meaning of the 2010 Act.

At issue is the what a Tribunal needs to decide when considering a discrimination and an unfair dismissal case. In Iceland Frozen Foods Ltd v Jones, the seminal case that codified the band of reasonable responses test, two of the five key considerations were that:

  • in applying the section an employment tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;
  • in judging the reasonableness of the employer’s conduct an employment tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

The court further observed that

  • in many (though not all) cases there is a “band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

The tribunal therefore is not asked to decide ‘should the employee have been dismissed’ but rather ‘did the employer act reasonably in deciding to dismiss the employee’ and later cases have clarified that the tribunal is prohibited from adopting a substitution mindset (thinking about what decision they would have made), their task is to assess the decision maker’s decision not to make the decision again. Whilst there is an objective decision in play it is only in respect to the findings of fact as to whether the subjective decisions of the dismissal decision maker were ‘reasonable.’  By (apparent) contrast the task in a discrimination claim is to fact decide the issue and make objective decisions. But are the two regimes really different? Underhill LJ continues:

The law is complicated enough without parties and tribunals having routinely to judge the dismissal of such an employee by one standard for the purpose of an unfair dismissal claim and by a different standard for the purpose of discrimination law. Fortunately I see no reason why that should be so. On the one hand, it is well established that in an appropriate context a proportionality test can, and should, accommodate a substantial degree of respect for the judgment of the decision-taker as to his reasonable needs (provided he has acted rationally and responsibly), while insisting that the tribunal is responsible for striking the ultimate balance; and I see good reason for such an approach in the case of the employment relationship. On the other, I repeat – what is sometimes insufficiently appreciated – that the need to recognise that there may sometimes be circumstances where both dismissal and “non-dismissal” are reasonable responses does not reduce the task of the tribunal under section 98 (4) to one of “quasi- Wednesbury” review: see the cases referred to in para. 11 above. Thus in this context I very much doubt whether the two tests should lead to different results.

When this judgement was published I worried about the implications since, in practical terms it suggested that the threshold under which a finding of discrimination should be made is the substantially the same as when considering whether a decision was in the range of reasonable responses. The problem with this is that this test is, in my view, more onerous than a balance of probabilities one with the result that it would be harder for a worker to establish that their treatment was discriminatory, especially where there is also a claim of unfair dismissal.

Thankfully, last year in City of York Council v Grosset the Court of Appeal clarified matters somewhat. Commenting on this suggestion that the test for a discriminatory dismissal and an unfair dismissal are the same was rejected:

I think it is clear that Underhill LJ was addressing his remarks to the particular facts of that case, and was not seeking to lay down any general proposition that the test under section 15(1)(b) EqA and the test for unfair dismissal are the same.

I don’t think it was in any way clear that the comments were just related to “the particular facts of that case” but, nonetheless, the rejection of the proposition that the two tests are the same is a welcome one.

Eye of the Beholder

It is well known that the Equality Act recognises nine ‘protected characteristics.’ In the majority of cases the claim will require that a person holds that protected characteristic to bring a claim. Thus, one cannot make a claim in the employment tribunal that your employer indirectly discriminates against older workers if you are in fact an older worker, and neither of course an your employer as failed to make reasonable adjustments if you are not disabled.

On the surface this seems sensible and obvious. However, in the case of claims of direct discrimination (and harassment bit I do not address this here) there is an occasional exception.

Direct discrimination is defined in section 13(1) of the Equality Act 2010 as follows:

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

What is clear is that this definition means that if, for example, a woman believes they have been treated less favourably because of their sex – perhaps having been refused a job or been dismissed then they have grounds to make a claim of direct sex discrimination because they have been treated less favourably than they would have been if they had been male. However, the careful reader will note that the definition of direct discrimination does not say a person is discriminated because of their protected characteristic but simply a protected characteristic. 

This means that a person can, in some circumstances, successfully make a direct discrimination claim even if they do not hold the protected characteristic.

For example, suppose Angel, a male job applicant, completes an submits a job application. The employer, on reading the application sees the name and, concluding Angel is female because he has a female relative called Angel rejects the application as he does not want to recruit a woman to the role even though the application was better than those to whom the employer invited to interview.    In such a circumstance it is clear that Angel has been treated less favourably because the employer thought Angel was a woman, even though he was not. Because of this Angel would be able to bring a sex discrimination case against the employer because of their perception of Angel’s sex. Another example could be a worker subjected to homophobic abuse because co-worker’s thought he was gay or even, as in a recent case, because the employer thought the worker was disabled.

The key issue is whether the alleged discriminator perceives a person to be of a particular protected characteristic (evidence of this can of course be difficult to obtain) then if they are treated negatively because of this perceived characteristic then there may be  direct discrimination claim.