The chilling effect and the most ancient form of vengeance: discrimination and victimising third parties

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Abstract

The recent Equality Act 2010 includes a revised definition of ‘victimisation’, which (in the Act’s most litigated field of employment) prohibits employers from victimising workers who use the legislation. The underlying mischief should be the deterrent effect upon litigants, or potential litigants (the ‘chilling’ effect). One particularly pernicious deterrent is the victimisation, not of the complainant, but of a third party, such as the complainant’s spouse, loved one or friend, ‘the most ancient form of vengeance’. Yet the revised definition does not address the deterrent effect per se, and specifically excludes third party victimisation from its reach. This paper explores, first, why the deterrent mischief and the chilling effect should underpin the victimisation provision, so that it addresses third party victimisation; second, the potential of existing alternative solutions in domestic law (including parallels with the criminal contempt of court); and third, the position under EU law and the United States’ Civil Rights Act 1964. It concludes that the best existing solution lies in EU general principles, but for the sake of certainty, a simple amendment to the existing formula is required, which would solve the problem without any adverse effects.
Original languageEnglish
Pages (from-to)123-139
JournalInternational Journal of Discrimination and the Law
Volume11
Issue number3
DOIs
Publication statusPublished - Sep 2011

Keywords

  • Equality Act 2010
  • victimisation
  • third party victimisation
  • remedies
  • Civil Rights Act 1964
  • contempt

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