Did the act of re-casting an actor because she became pregnant between two seasons of a show amount to pregnancy discrimination in the workplace?

Yes, held an Employment Tribunal in the recent case of Kinlay v Bronte.

The Claimant had a minor role in Strike, a series produced by Bronte productions. In the first season of the show, she appeared in a 30 second scene as character Sarah Shadlock and expected to reprise the same role in the second season.

Filming of the second season was set to start in September 2019. In June 2019 a cast list was drawn up and the Claimant was listed as one of the returning actors. On 15 July 2019, the Claimant’s agent informed the Respondent of her pregnancy. Later that month, the Respondent made the decision not to re-hire the Claimant and by September 2019, the Respondent had re-cast the role and the claimant faced pregnancy discrimination in the workplace.

The Claimant subsequently brought a claim for direct discrimination based on the protected characteristic of pregnancy. The Respondent argued that the exception under paragraph 1 of Schedule 9 EqA 2010 applied. That is, there was an occupational requirement that the actress not be visibly pregnant. The Claimant agreed that the character couldn’t be visibly pregnant but argued that there were a number of ways the pregnancy could be concealed.

The key issue from the Tribunal’s point of view, given it was agreed that there was a legitimate aim (that the character did not appear to be visibly pregnant) was whether or not refusing to re-engage the actress was a proportionate means of achieving that aim. The Respondent argued it was proportionate, given that:

1. Disguising the Claimant’s pregnancy would constrain the creative vision of the director.
2. The higher risk of a pregnant actor being unwell could lead to additional costs.
3. It would be disproportionate to arrange the filming schedule to suit the Claimant.
4. The cost of disguising the pregnancy via post-production editing would be disproportionate.

The Tribunal dealt with each of these arguments in turn and dismissed them all.

On point 1, they found a combination of costume, lighting and camera angle could have concealed the pregnancy without constraint on the director’s vision. On point 2, they found the risk of the Claimant being unwell as a consequence of pregnancy was minimal. On point 3, they said that given the claimant would only appear in 3 scenes, the filming schedule would be easy to adapt. On the final point they found that post-production editing to remove the visibility of her pregnancy would cost around £5000, which was not disproportionate.

The Tribunal decided that the genuine occupational requirement defence criteria were not met. The Claimant was successful in her claim for pregnancy discrimination in the workplace and was awarded £11,000.

Production companies have long relied on the occupational requirement defence when casting roles. It is used to preserve authenticity and realism and ensure creative freedom. It is classic common sense law – if a production company is recruiting for the role of Tupac Shakur, they can legitimately exclude elderly white women from applying. But the judgment in Kinlay shows Employment Tribunals do not see the defence as a free pass for discrimination against pregnant employees and will come down on employers who misuse it.

It’s thought The Kinlay case is the first of its kind bought before a Tribunal. If it encourages more actors to challenge this undeveloped area of law it could pose a real issue for production companies and pregnancy discrimination in the workplace.

This blog was brought to you by Jack Dooley, Paralegal for didlaw.