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Film company loses discrimination case after arguing ‘genuine occupational requirement’ for actress not to be pregnant

Makbool Javaid, Partner - Simons Muirhead & Burton

In Kinlay v Bronte Film and Television Ltd, an employment tribunal had to decide whether Ms Kinlay had been treated unfavourably by Bronte under the Equality Act 2010 because of her pregnancy when another actor was given the role after she advised Bronte 2 months prior to filming starting that she was 12 weeks pregnant.

The production company argued that it was a genuine occupational requirement that the actor not be visibly pregnant as this would not fit with the storyline. Although she agreed that that the character could not be visibly pregnant, Ms Kinlay said that it was not a ‘genuine occupational requirement’ that the actor not be visibly pregnant, given the ways in which a pregnancy could be readily concealed, such as by using props or digital alteration.

Ms Kinlay’s claim was upheld by the tribunal, and Ms Kinlay was compensated for financial loss and injury to feelings. The tribunal found that it would have been possible and proportionate to conceal Ms Kinlay’s pregnancy without constraining the director’s creative vision. The Tribunal also found  that the risks in relation to sickness and fatigue were minimal as the filming was due to take place during the middle of Ms Kinlay’s pregnancy.

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