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Advocate General Kokott says associative discrimination can exist in relation to indirect discrimination as well as direct discrimination

The Equality Act 2010 now expressly provides for associative discrimination as a cause of action for direct discrimination and harassment in relation to protected characteristics.

Although this decision is not binding on other tribunals, it is important because, it neatly resolves the potential conflict between EU law and domestic legislation. If it is followed in other cases, it may pave the way for more holiday pay claims to be brought involving different types of commission schemes and potentially discretionary bonuses and other forms of remuneration.

This means it occurs, as its name implies, when someone suffers discrimination owing to their association with someone with a ‘protected characteristic’, rather than having the disability themselves.

In Europena law, (from which UK Law can derive) Advocate General Kokott has recently shared her view that this should be extended to include indirect discrimination; this would mean someone could potentially claim they had suffered discrimination because of their association with someone who has a protected characteristic and has been put at a disadvantage by a “provision, criterion or practice” that also puts other people with the same protected characteristic at a disadvantage. i.e. their association with a women who applied for a position but was unsuccessful because the company only hires full time staff.

She was brief with her reasoning but was clear that, as of this time, associative discrimination has only arisen in cases of direct discrimination; this didn’t mean that it couldn’t be considered in an indirect context.

Watch this space!

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