General Occupational Requirement Exception Did Not Apply in Pregnant Actor's Discrimination Claim
In Kinlay v Bronte Film and Television Ltd, an employment tribunal looked at whether an employer's general occupational requirement that an actor be NOT visibly pregnant in defence to her claim of pregnancy and maternity discrimination was acceptable.
The tribunal concluded that the general occupational requirement exception did not apply in this case.
What Is a General Occupational Requirement?
Under the Equality Act 2010, there are a number of exceptions that employers can rely on when facing discrimination claims. One of these is the general occupational requirement (GOR) exception.
This exception is available where, taking into account the nature or context of the work, being of a particular sex, race, disability, religion or belief, sexual orientation or age (or not being a transsexual person, married or in a civil partnership) is an occupational requirement of the particular role.
To rely on a GOR an employer must prove that the GOR is a proportionate means of achieving a legitimate aim.
What Were the Facts of the Case?
Bronte Film and Television Ltd (Bronte) is the producer of the Strike Series - the TV series based on the Strike novels by Robert Galbraith (a pseudonym of J.K. Rowling).
Ms. Kinlay played the role of Sarah Shadlock in the series, a small part that required her to be on screen for 30 seconds in the Career of Evil series.
In 2019, production began for the Strike Series: Lethal White, for which filming was due to start on 16 September 2019. Ms Kinlay had been due to return to her role, which was still fairly minor, but pivotal to the plot. On 15 July 2019 Ms Kinlay advised Bronte that she was 12 weeks pregnant and on 29 July 2019 Bronte decided not to cast Ms Kinlay to reappear as Sarah Shadlock. Bronte hired another actor to carry out the role in September 2019.
Ms Kinlay subsequently brought a discrimination claim on the basis that she had been treated unfavourably because of her pregnancy.
Bronte argued that a GOR applied: that the actor playing Sarah Shadlock should not be visibly pregnant as that would unacceptably constrain the director's creative vision, risk additional costs as a result of illness, impact the filming schedule, result in disproportionately increased costs in the use of post-production editing and create difficulties in obtaining appropriate insurance.
Whilst Ms Kinlay agreed that the character could not be visibly pregnant, she argued that recasting the role was not proportionate because there were a number of ways that the pregnancy could be concealed: costume choices, lighting, camera angles, use of props and, if necessary, post-production editing.
What Did the Tribunal Decide?
Ms Kinlay's claim was upheld by the tribunal, and Ms Kinlay was compensated for financial loss and injury to feelings.
The tribunal found that it would have been possible and proportionate to conceal Ms Kinlay's pregnancy without constraining the director's creative vision. The Tribunal also found that concealment would either negate the need for post-production editing entirely or render the costs of this reasonable in the context of the overall budget of the production. The Tribunal also found that the risks in relation to sickness and fatigue were minimal as the filming was due to take place during the middle of Ms Kinlay's pregnancy.
What Can We Take Away From this Case?
The Tribunal noted on several occasions that Bronte's arguments around proportionality did not appear to have been considerations at the time it made the decision to recast the role. Employers should therefore be careful to ensure that, before they decide to rely on a GOR to justify an action that might otherwise amount to discrimination, they give proper consideration to whether the proposed action is proportionate in the circumstances.
What is the aim that they are seeking to achieve? What is the discriminatory effect of the proposal? Is there another way in which they can achieve that aim without requiring the discriminatory act? If so, what are the pros and cons of this alternative? Based upon this, is the occupational requirement (and its discriminatory effect) proportionate to the aim? These considerations should be documented to ensure that the employer has a paper trail to evidence its decision making process.