Mr P Epstein QC, Counsel For the v Respondent — 2020

The Claimant, an actor, was not offered the role of Sarah Shadlock again in the second series of The Strike Series after the Respondent learned that she was pregnant. The Tribunal held that the claim was out of time measured from 29 July 2019, when the decision was taken, but it extended time under s.123(1)(b) EqA 2010. It did so because the Claimant did not know the reason for the decision for most of the limitation period, was later given wrong advice by Equity and ACAS, and the Respondent had contemporaneous notice of the dispute within the limitation period, so there was no substantial forensic prejudice.

On liability, the Tribunal found that not offering the Claimant the role was unfavourable treatment because of pregnancy. The Respondent accepted that pregnancy was the reason for the decision and relied on the Schedule 9 occupational requirement defence, saying that the character could not be visibly pregnant. The Tribunal accepted that the character should not appear pregnant, but held that this did not make it reasonably necessary to exclude a pregnant actor from the role.

The Tribunal found that the Claimant’s pregnancy could have been concealed through costume, camera angle, props, positioning of other actors and make-up, and that if post-production work was needed it would probably have been limited. It found that the likely post-production cost would be in the range of £5,000 to £8,000, not the £25,000 figure relied on by the Respondent, and that this was not disproportionate in the context of the production budget and the fee paid to the replacement actor. It also rejected the Respondent’s reliance on scheduling difficulties and insurance as sufficient to justify the decision. Remedy was agreed as £4,370.75 for financial loss, plus £6,000 for injury to feelings, with interest of £336.73 on financial loss and £924.49 on injury to feelings.