Actor makes successful pregnancy discrimination claim over occupational requirement issue

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In Kinlay v Bronte Film and Television Ltd the Employment Tribunal considered whether a television production company could rely on the existence of a genuine occupational requirement for an actress not to be visibly pregnant.

In 2017, Ms Kinlay acted as character Sarah Shadlock in a detective series called The Strike Series: Career of Evil which was to be shown on television. Sarah Shadlock was due to reappear in the next series, called Lethal White. Filming for Lethal White would start on 16 September 2019 and continue for 12 weeks.

In July 2019, Bronte Film and Television Ltd decided that Ms Kinlay would not be cast as Sarah Shadlock because she would be visibly pregnant and this would be inconsistent with the storyline. Another actor was given the role.

Ms Kinlay argued that she had suffered pregnancy discrimination contrary to the Equality Act 2010.

The Employment Tribunal found that the act of not offering Ms Kinlay the Sarah Shadlock role in the second series was unfavourable treatment, and Bronte admitted that this was because of her pregnancy.

However, an employer will not breach certain provisions of the Equality Act if, with regard to the nature and context of the work, there is an occupational requirement which is a proportionate means of achieving a legitimate aim, and the employer is reasonably satisfied that the person they have applied the occupational requirement to does not meet it. Here, Bronte argued that in relation to the role of Sarah Shadlock there was a genuine occupational requirement that the actor performing the role would not be visibly pregnant.

Bronte and Ms Kinlay agreed that it was a legitimate aim for the character not to appear visibly pregnant to viewers. However, they disagreed over proportionality. The Tribunal confirmed that “proportionate means are to be assessed by what is appropriate and what is reasonably necessary”.

The Tribunal considered Bronte’s arguments that:

  • the need to disguise Ms Kinlay’s pregnancy would unacceptably constrain the Director’s creative vision. Here the Tribunal found that there were a large number of practical constraints, but that “through a combination of costume choice, lighting, camera angle and (only if necessary) post-production digital image modifications” it would have been possible to conceal Ms Kinlay’s pregnancy, without an unacceptable constraint on the director’s vision.
  • there is a risk of a pregnant actor being unwell or having a difficult pregnancy leading to additional costs. The Tribunal found this risk to be minimal in the circumstances.
  • it would be disproportionate to set up or arrange the filming schedule to accommodate Ms Kinlay’s pregnancy. While the Tribunal accepted that it would not be proportionate to rearrange the entire filming schedule, it found that this overstated the difficulty and would not have been necessary.
  • the cost of disguising Ms Kinlay’s pregnancy through post-production visual editing would be disproportionate to the wage cost of casting her. The Tribunal found that the cost of any post-production work would not have been significantly different from the cost Bronte actually incurred in casting someone else. This cost was not found to be disproportionate. Therefore, it was not reasonably necessary on the basis of costs “to discriminate against [Ms Kinlay] for her pregnancy and cast someone else”.
  • there were difficulties in obtaining insurance. The Tribunal was not satisfied that “in reality the insurance position for an actor filming 4 days in the middle of her pregnancy would have been sufficiently prohibitive to mean that it was reasonably necessary to cast someone else”.

The Tribunal was not therefore satisfied that Bronte had shown that “the occupational requirement for the actor playing the role [of Sarah Shadlock] not to be pregnant was reasonably necessary”. Bronte’s defence failed.

Ms Kinlay succeeded in her claim and was awarded £4,370.75 (and £336.73 interest) in respect of financial loss and £6,000 (and £924.49 interest) for her injury to feelings.