Victimising third parties: the equality directives, the European convention on human rights, and EU general principles

This article highlights a problem which has troubled courts in the United States in recent years, and like most equality issues arising in US litigation, it is likely to trouble Europe's courts in due course. It concerns the victimisation provisions expressed in equality legislation, such as the Civil Rights Act 1964 (US), the EU Equality Directives, or the Equality Act 2010 (UK). The problem is that none of these are expressed to prohibit the victimisation of third parties, for instance, dismissing a spouse of a worker who brought a discrimination claim. This "most ancient form of vengeance" is designed to deter the worker from pursuing the claim, and will also deter others from complaining, "the chilling effect". This article identifies a variety of scenarios where a third party could be victimised, highlights the shortcomings in the equality Directives, and searches for solutions in EU law and the European Convention of Human Rights. It concludes that the best existing solution lies in EU general principles, but for the sake of certainty, a simple amendment to the existing legislative formulas is required, which would resolve the problem without any undue side-effects.