In the recent case of Kinlay v. Bronte Film and Television Ltd, the Employment Tribunal considered whether the decision to recast an actor on the basis that she was visibly pregnant, which on the face of it would have amounted to pregnancy discrimination, could be justified under the Equality Act 2010 (the Act). 

Ms Kinlay was due to reprise her role in the fourth series of Strike, produced by Bronte Film and Television Limited (Bronte). She had previously appeared in the third series for an approximate screen time of 30 seconds. However, upon informing Bronte that she was 12 weeks pregnant, they made the decision to recast her role.

The Tribunal

Ms Kinlay brought an Employment Tribunal claim for pregnancy and maternity discrimination. Bronte's position (with which Ms Kinlay agreed) was that the character could not be visibly pregnant as viewers may link this to the plot. On this basis, Bronte argued that there was a genuine occupational requirement that Ms Kinlay not be pregnant, and so the decision to not employ her was permitted by an exception under the Act. Ms Kinlay argued that there were ways of concealing her pregnancy during filming so she could still take the role without it interfering with the plot.

Genuine occupational requirements

The Act identifies pregnancy and maternity as a "protected characteristic". This prohibits an employer from treating a person unfavourably during her pregnancy and maternity leave. It also means that they cannot discriminate against a person by refusing to offer them employment because of the pregnancy. 

However, the Act permits employers to apply less favourable treatment in limited circumstances where there is a genuine occupational requirement. For this to apply, the employer must show that, having regard to the nature or context of the work, it has a requirement that an employee is of a particular sex, race, disability, religion or belief, sexual orientation or age (or is not transsexual, married or a civil partner). Curiously, the Act does not say anything about a requirement not to be pregnant.

In order to establish that it has a genuine occupational requirement, the employer must also show that application of that requirement is a proportionate means of achieving a legitimate aim and that the relevant individual does not meet the requirement. This means that alternatives to the discriminatory treatment must be considered. It is important to be aware that genuine occupational requirements exceptions may only be applied to recruitment; access to promotion, transfer or training; or dismissal. They cannot be applied so as to justify discriminatory treatment more generally. The exceptions will only rarely be applied.  

Decision

Whilst the Tribunal agreed that the claimant's character could not be visibly pregnant, it disagreed with Bronte's application of the genuine occupational requirement exemption. In finding for Ms Kinlay, it suggested that her pregnancy could have been concealed through camera angles, props, the positioning of other actors, make-up and costume. 

The Tribunal also considered the cost of these workarounds. The actor that was eventually hired to replace Ms Kinlay was paid over £5,000 more than Ms Kinlay was due to be paid. By contrast, it was estimated that post-production work to conceal the pregnancy would have cost within the range of £5,000-£8,000. In the context of a show operating under a budget of £8.5 million, the Tribunal's view was that this was an insignificant cost.

Key takeaway

The Tribunal held that limitations to discrimination protection should be interpreted restrictively. However, it did not expressly address the wider question of whether an occupational requirement could ever be used to justify discrimination based on pregnancy or maternity. Rather than dismiss the concept outright, it gave careful consideration to the arguments put forward by Bronte which leaves the wider question unresolved for now. This case is nonetheless a reminder that, where an employer seeks to rely on an occupational requirement, it must be able to show that it is a proportionate means of achieving a legitimate aim. It should document the fact that it has assessed all alternative options and be mindful that the burden will be on it to show why any less discriminatory methods were not feasible. Employers should also be mindful of how infrequently these exceptions will be properly applied.