In Kinlay v Bronte Film & Television Limited [2021] Ms Kinlay won her claim for pregnancy discrimination and was awarded £11, 631.97 compensation by the Employment Tribunal.
Ms Kinlay played the minor role of Sarah Shadlock in the first series “The Strike Series”, a television detective drama based on the novels of Robert Galbraith (J K Rowling). She was expected to be cast in the second series. Her agent informed the production company in July 2019 that she was 12 weeks pregnant. Filming was to take place in Autumn 2019. The production company decided not to cast Ms Kinlay and to offer the part to a different actor.
Ms Kinlay brought a claim for direct pregnancy discrimination in the Employment Tribunal to an employment tribunal. The production company argued that there was an occupational requirement for the person playing the character of Sarah Shadlock not to be visibly pregnant. This was on the basis that the audience would have been confused by the character being pregnant and that this would have been contrary to the plot of the novel, which the television series closely followed. The production company argued that it was proportionate not to cast Ms Kinlay given the difficulties and costs which would have arisen in filming and post-production when attempting to conceal the pregnancy.
The Employment Tribunal did not agree and upheld the claim because it was not reasonably necessary to apply the occupational requirement and deny the role to Ms Kinlay. In considering the occupational requirement defence, it had to make “a fair and detailed analysis of the working practices and business considerations involved” rather than deciding whether the employer's decision fell within a “range of reasonable responses”. It therefore took into consideration the likely impacts of concealing Ms Kinlay's pregnancy on the costs and practicalities of the filming and post-production processes and came to its own view that the decision was not justifiable.
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