Actor was discriminated against when her role was recast because she would have been visibly pregnant during filming

Film company failed to defend claim on the basis that there was an occupational requirement not to be pregnant.

There are some circumstances in which employers can discriminate directly against an employee or applicant for a role on the basis of a protected characteristic. One of these is where there is an “occupational requirement” to have a particular protected characteristic. For example, an employer may decide that a role can only be carried out by a person with a particular disability, sex or race. These occupational requirements are set out in Schedule 9 of the Equality Act 2010. They apply to claims concerning decisions about recruitment, promotion, transfer, training and dismissal.

In the case of gender reassignment and marriage / civil partnership, employers may have an occupational requirement for an employee not to be trans, or not to be married / in a civil partnership. Interestingly (when considering the case we report on below), a requirement not to be pregnant cannot be an occupational requirement. 

When will an occupational requirement apply?

Employers must have very good reasons for applying an occupational requirement to successfully defend a claim. The Equality and Human Rights Commission Statutory Code of Practice makes clear that this and other exceptions to the prohibition on discrimination should generally be interpreted restrictively by courts and tribunals.

This defence can only be used when an employer can show that:

• The requirement is crucial to the role, taking into account the nature and context of the work;
• The requirement is also a proportionate means of achieving a legitimate aim (in other words it is appropriate and reasonably necessary considering the needs of the employer and the impact on the individual); and
• The person does not meet the requirement, or (except in the case of sex) the employer has reasonable grounds for not being satisfied that the individual meets it.

It is also important to note that only direct discrimination claims can be defended in this way. An occupational requirement cannot be relied upon to defend other Equality Act claims, such as indirect discrimination or harassment.

The EHRC Statutory Code of Practice gives the following examples of where an occupational requirement might apply:

“Examples of how the occupational requirement exception may be used include some jobs which require someone of a particular sex for reasons of privacy and decency or where personal services are being provided. For example, a unisex gym could rely on an occupational requirement to employ a changing room attendant of the same sex as the users of that room. Similarly, a women’s refuge which lawfully provides services to women only can apply a requirement for all members of its staff to be women.”

Case details: Kinlay v Bronte Film and Television Ltd

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 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, finding that it was not reasonably necessary to apply the occupational requirement and deny the role to Ms Kinlay. The tribunal made clear that, 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.

Ms Kinlay was awarded around £4,500 for financial loss and £6,000 for injury to feelings.

Can not being pregnant be an occupational requirement? 

Surprisingly, the employment tribunal does not seem to have considered the more fundamental question of whether an employer could ever defend a direct pregnancy discrimination claim on the basis of an occupational requirement not to be pregnant.

Unlike gender reassignment and marriage / civil partnership, pregnancy is not one of the protected characteristics listed in Schedule 9 of the Equality Act where a requirement not to have the protected characteristic can be an occupational requirement.

Employers who make a detrimental decision about recruitment, promotion, transfer, training or dismissal because an individual is pregnant will not be able to defend the claim. Similarly, employers cannot defend a direct disability discrimination claim on the basis that there is an occupational requirement not to be disabled. In such cases, the employer is likely to argue instead that the reason for the decision was not the employee’s pregnancy or disability, but some other lawful reason.

Applying an occupational requirement to a role

Employers should only seek to apply an occupational requirement after careful consideration of the nature and context of the particular role in question. Broad application of an occupational requirement across various different roles in an organisation is unlikely to be justifiable.

Employers should consider and document in the case of each relevant role the business reasons for the requirement, based for example on legitimate client / customer needs, including why the requirement is necessary and appropriate. It would also be helpful to document consideration of any less discriminatory ways of achieving the same aim and to explain why this alternative approach would not be feasible in the circumstances.