After a production company found out actress Antonia Kinlay was pregnant, it dropped her from a BBC show “in order to avoid this complication”. Today, 4 August 2021, an employment tribunal found that this was unjustified pregnancy discrimination.
Paul Epstein QC represented Kinlay, instructed by Joelson solicitors.
So far as the parties are aware, this is the first case that considers genuine occupational requirement in the context of actors and pregnancy.
A link to the tribunal judgment can be found here.
Kinlay, 34, had played a minor role in the Strike series, a British crime drama based on the novels written by JK Rowling under the pseudonym Robert Galbraith.
The programme was produced independently for the BBC by Brontë Film & Television Limited, which defended the claim.
Kinlay appeared as the Sarah Shadlock character for about 30 seconds in the third series, Career of Evil, and had expected to play the part again in the fourth series, Lethal White. However, she was recast after becoming pregnant.
A freelance producer, Jackie Larkin, was informed that Kinlay was pregnant and wrote in an email that it was “good to have the heads up”, adding: “It will have an impact on when we shoot with her so we can start planning now!”
The tribunal heard it was most likely that Larkin “was working on the assumption that it would be possible to work around the claimant being pregnant and suggested a degree of potential flexibility about the timing of the shooting”. However, a decision was made to give another actress the part. Kinlay would have been between five-and-a-half and just under seven months pregnant at the time of filming.
In October 2019, a producer said there were concerns that viewers might notice the pregnancy and link it to the plot. An email said: “We were concerned given the nature of the storyline, that it might appear that the character was pregnant and that this would therefore raise questions with the audience as to whether Matthew was the father as well as sleeping with his best friend’s fiancée. We made the decision to recast the role to avoid this complication, which is not in the book. One of our remits is to stay close to JK Rowling’s novels and this would have changed significantly what JKR wrote.”
The production company also claimed there were “potential issues” with Kinlay “being unwell or having a difficult pregnancy”. This was dismissed as a minimal risk by the tribunal panel, which said filming did not fall at the beginning of pregnancy where morning sickness typically occurs. It was also not in the final two months of pregnancy where she might be expected to be physically struggling.
The panel ruled in Kinlay’s favour on pregnancy discrimination and awarded her more than £11,000 in compensation. It found the company could have still cast her in the part and concluded that “it would have been possible to conceal her pregnancy through the use of costume, camera angle, props, the positioning of other actors and make-up if appropriate”.