Statutory Interpretation, Victimization Under Equality Law, and Its ‘On–Off’ Relationship With Contempt of Court

Abstract

Lord Steyn once stated that the victimization of those who complain of discrimination under the equality legislation should be treated as seriously as the discrimination itself. Empirical research, demonstrating the fear of reprisals, supports this. If, say, employees can be denied promotions, grievance processes, transfers, or references because of a complaint, their careers could be frozen for years or even destroyed. This would undermine the legislation’s principal rubrics against discrimination and harassment. Hence, the equality legislation has provided an independent cause of action for victimization. Yet, from the earliest days of this legislation (beginning with the Sex Discrimination Act 1975), the courts have afforded the victimization provisions a particularly narrow construction. In 1993, it was suggested that the resulting ‘weak’ victimization provisions could be ‘supplemented’ with the law of (criminal) contempt of court, by filling the gaps left by the narrow interpretations and moreover, providing a stronger ‘deterrent value’ of criminal proceedings. This paper explores that suggestion by reviewing the subsequent case law. It begins by setting out the legislation and the problematic ‘narrow’ interpretations. This is followed by an outline of the relevant principles of contempt of court and then reviews some prominent victimization cases. This review shows that indeed principles of contempt have been imported into some of these cases, but not in the way anticipated. It reveals that first, contempt was used to restrict the victimization provisions, second, it was ignored to fill obvious gaps in these provisions, and third, that some victimization cases ought to have been referred for contempt but were not. It concludes by identifying that this ‘on–off’ relationship between victimization and contempt of court exposes the judiciary’s reluctance to take the administration of justice as seriously for equality law as it does for other fields.