Genuine occupational requirements and the need not to appear visibly pregnant
An employment tribunal has considered in Kinlay v Bronte Film and Television Ltd whether an employer could rely on a genuine occupational requirement (GOR) for an actor not to be visibly pregnant when it decided not to offer her the opportunity to appear in a TV series.
The claimant appeared in a detective series produced by Bronte in 2017 (during which she appeared for approximately 30 seconds on screen). In 2019 Bronte began to produce a follow-up. Filming was due to start on 16 September 2019 with 60 days' shooting to be completed by 12 December 2019. The claimant had been due to return to her role, but on 15 July 2019 Bronte was informed that the claimant was 12 weeks pregnant, as a result of which it entered into a contract with another actor to play the claimant's role. The claimant argued that Bronte had treated her unfavourably because of her pregnancy. Bronte argued that the GOR exception under the Equality Act 2010 applied stating that the GOR was that, having regard to the nature and context of the work required in relation to the role, the actor performing it could not be visibly pregnant. The claimant agreed that her character could not be visibly pregnant but argued that this was not equivalent to a GOR as there were a number of ways that her pregnancy could be concealed.
The tribunal upheld the claimant's claim. It considered that it would have been possible to conceal the claimant's pregnancy and concluded that Bronte had not shown that the GOR was a proportionate means of achieving a legitimate aim.
Take note: The tribunal concluded in Kinlay that there was no GOR as it would have been possible to film the claimant's scenes without her pregnancy being noticeable. However, it remains a moot point whether a GOR not to appear visibly pregnant would be protected under the Equality Act 2010. Although the Act specifically provides for instances where the requirement is not having a protected characteristic there is no mention of either pregnancy or maternity in relation to this exception.