An actor has won her claim for pregnancy discrimination against Harry Potter author J.K. Rowling’s production company Bronte Film and Television Ltd.
In Kinlay v Bronte Film and Television Ltd, an employment tribunal had to decide whether Ms Kinlay had been treated unfavourably by Bronte under the Equality Act 2010 because of her pregnancy when she not offered the small part of Sarah Shadlock in ‘Strike: Lethal White’, the fourth series in the ‘Strike’ TV detective franchise.
Ms Kinlay had previously starred in the third series, ‘Career of Evil’, but in July 2019 Bronte decided not to cast Ms Kinlay to reprise her role and offered the part to another actor.
Section 4 of the Equality Act 2010 identifies pregnancy and maternity as a ‘protected characteristic’. Section 18(2)(a) prevents an employer treating a woman unfavourably because of her pregnancy, and under section 39(1)(c) employers cannot discriminate against a person by not offering them employment.
Bronte sought to rely on Paragraph 1, Schedule 9 of the 2010 Act, which, in limited circumstances, allows an employer to lawfully discriminate against someone, if it shows that having regard to the nature or context of the work there is a ‘genuine occupational requirement’; the application of this requirement is a proportionate means of achieving a legitimate aim; and the person to whom the employer applies the requirement does not meet it.
The production company argued that it was a genuine occupational requirement that the actor not be visibly pregnant as this would not fit with the storyline. Although she agreed that that the character could not be visibly pregnant, Miss Kinlay said that it was not a ‘genuine occupational requirement’ that the actor not be visibly pregnant, given the ways in which a pregnancy could be readily concealed, such as by using props or digital alteration.
Bronte also argued that there was a ‘genuine occupational requirement’ as the means of disguising the pregnancy were not proportionate; there was a risk Ms Kinlay could become unwell due to her pregnancy; and Bronte would incur disproportionate costs in arranging the filming schedule around the pregnancy. The company also raised possible difficulties in obtaining insurance, and post-production editing costs being too high in proportion to Ms Kinlay’s earnings.
Ms Kinlay won her case, with the tribunal finding that the risk of her being unwell was minimal and, as the part was a minor one, no big changes to the filming schedule were likely to be required. Bronte had not considered post-production visual editing at the time and, even if it had, the cost was not disproportionate. The tribunal also held that an occupational requirement that the actor not be visibly pregnant was not reasonable, and that insurance costs would not have been so prohibitive that it was reasonably necessary to cast someone else.
Although this employment tribunal decision is a first instance judgment not binding on subsequent employment tribunals, the case does remind employers that they must get
their act together and show that relying on a genuine occupational requirement is a proportionate means of achieving a legitimate aim. The End.