Is "being not visibly pregnant" a general occupational requirement for an actor's role?
An employment tribunal in Kinlay v Bronte Film and Television Ltd ET/2200251/2020, has recently had to consider whether an employer could defend a pregnancy and maternity discrimination claim, on the basis that it was a general occupational requirement ("GOR") that the actor performing the role in question would not be visibly pregnant.
The Claimant was an actor who played the role of Sarah Shadlock in a TV detective series, based on a series of novels called The Strike Series. The Respondent, a television production company, produced the show. The role of Sarah Shadlock was minor, and the Claimant only appeared on screen for about 30 seconds.
The Respondent started to produce the next series based on the novels. Filming was due to start in September 2019 with 60 days' shooting to be completed by mid-December 2019. The Claimant was due to return to her original role (which remained minor but was more important to the plot). In July 2019, the Respondent was informed that the Claimant was 12-weeks pregnant and was due to give birth in January 2020. Later that month, the Respondent decided not to cast the Claimant in the original role and contracted another actor to play Sarah Shadlock.
The Claimant brought claims of pregnancy discrimination. The Respondent admitted that the decision not to cast the Claimant was because of her pregnancy. However, the Respondent relied on a GOR that required the actor performing the role of Sarah Shadlock to not be visibly pregnant. The Respondent argued that, having regard to the nature and context of the work, the GOR was a proportionate means of achieving a legitimate aim and the Claimant did not meet (or the Respondent had reasonable grounds for not being satisfied that the Claimant met) that requirement.
The Claimant agreed that the character could not be visibly pregnant, but argued there were a number of ways in which pregnancy could be readily concealed so that this did not equate to a GOR.
The Tribunal upheld the Claimant's claim, and she was awarded compensation for financial loss and injury to feelings.
As noted above, the Claimant agreed that the character could not be visibly pregnant, and it was not disputed that it was a legitimate aim of the Respondent's that the character not appear visibly pregnant to viewers. The key issue was whether the Respondent had acted proportionately.
The Respondent advanced a number of arguments to support its requirement that the role of Sarah Shadlock be played by an actor who was not visibly pregnant, including (amongst others):
- the need to disguise the Claimant's pregnancy would unacceptably constrain the Director’s creative vision;
- the fact that it would be disproportionate to set up the filming schedule to accommodate the Claimant's pregnancy; and
- the cost of disguising the Claimant's pregnancy through post-production visual editing would be disproportionate to the wage cost of casting her.
The Tribunal did not find the Respondent's arguments persuasive, and it addressed each of the key grounds in its decision. For example, in relation to the argument of constraining creative vision, the Tribunal found that there are inevitably a large number of practical constraints which can impact the creative process, and that based on the Claimant's actual role in the Series,
"through a combination of costume choice, lighting, camera angle and (only if necessary) post-production digital image modifications it would have been possible to conceal the Claimant’s pregnancy, without an unacceptable constraint on the director’s vision".
This case highlights the importance of not only identifying a genuine occupational requirement, but being able to show that its application is a proportionate means of achieving a legitimate aim. Employers should be careful of assessing all the circumstances of a particular case, and the alternative options available, before seeking to argue that a particular GOR is reasonably necessary. In this case, the Tribunal was very mindful that the burden to prove this is on the Respondent, and that any exceptions to discrimination based on GOR should be interpreted restrictively.