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The Chilling Effect and the Most Ancient Form of Vengeance

Connolly, MJ (2011) The Chilling Effect and the Most Ancient Form of Vengeance International Journal of Discrimination and the Law, 11 (3). 123 - 139. ISSN 1358-2291

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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; and third, the position EU law, and under 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 undue side-effects.

Item Type: Article
Additional Information: Published in International Journal of Discrimination and the Law, 11 (3) 2011. Copyright 2011 Sage Publications.
Divisions: Faculty of Business, Economics and Law > Law
Depositing User: Symplectic Elements
Date Deposited: 16 Oct 2012 11:20
Last Modified: 23 Sep 2013 19:27
URI: http://epubs.surrey.ac.uk/id/eprint/533329

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