Is It Marital Status Discrimination To Dismiss An Employee After His/her Spouse Left The Same Employer?

Introduction

In Cheuk Kit Man v FWD Life Insurance Company (Bermuda) Limited & others [2025] HKCFI 1369, the plaintiff ("Wife") and her husband ("Husband") were both insurance agents of defendant insurance company ("Company"). When the Husband resigned in May 2017, the Company terminated the Wife's agency agreement, revoke her access, and demand repayment of over HK$4 million in bonuses. The Wife sued the Company for, among other things, marital status discrimination.

Cheuk Kit Man poses an interesting question: When a married couple works for the same company, does termination of service of one worker on the basis of the worker's spouse leaving the company amount to marital status discrimination under the Sex Discrimination Ordinance (Cap. 480) ("SDO")? The Court of First Instance's answer was "No", provided that the company's true concern was the spouse's identity or conduct, not because of their marital status. This distinction carries profound implications for workplace equality and the scope of protection under the SDO.

Factual background

The Husband and the Wife were married in 2010. At the time, both of them were working as insurance agents at another insurer ("Convoy") in different teams.

The Wife joined the Company, in 2015 as a Senior Agency Director under an Individual Agent's Agreement ("IAA"). Her engagement terms include a signing bonus of approximately HK$2.17 million, monthly special bonuses of HK$90,601 for 24 months, and various performance-based incentives. These bonuses and incentives were subject to clawback provisions, where if the Wife's IAA was terminated within certain specified periods, she would be required to repay a significant portion of remuneration received.

The Wife was a high-performing agent. She expanded her agency downline from approximately 30 - 40 to around 90 agents. She consistently met her monthly production requirements, received performance awards, and maintained an unblemished record with no complaints, performance warnings, or disciplinary issues.

The Husband joined the Company shortly after the Wife joined. At the time, a large group of agents, including the Wife, left Convoy together and joined the Company. The Husband was one of the persons responsible for organizing the move of agents from Convoy to the Company ; around 250 agents intended to make the move.

Within the Company, the Husband and Wife were in different teams and regions. The Husband held a more senior position with the Company than the Wife. He was a Regional Director.

In early 2017, the Husband became dissatisfied with the Company and began exploring opportunities with another insurer, a major competitor. On 28 April 2017, the Husband met with the Company's management to discuss his intention to depart. On 5 May 2017, he submitted written notice of his resignation.

On that same day (i.e. 5 May 2017), the Wife's regional manager completed an Individual Agent Termination Form recommending termination of her IAA. No reason was given. Three days later, the Company gave notice to the Wife of termination of her IAA, providing only 6 days' notice as required under the IAA. Her system access was revoked immediately, and she was not afforded an opportunity to manage the transition with her clients.

On 31 May 2017, the Company demanded repayment of approximately HK$4 million, in relation to her signing fee, monthly bonuses, and incentive payments. The Wife contested and brought proceedings against the Company and five other senior personnel for, among other things, discrimination under the SDO. The Wife pleaded case was that her marital status or as the wife of the Husband was the sole reason, or one of the reasons, for the defendants' decision to terminate the IAA.

The SDO: Statutory framework and central issue

The SDO defines marital status to mean whether a person is single, married, married but living separately from a spouse, divorced, or widowed. In order to establish discrimination on the grounds of marital status:

1. there must be a difference in treatment between the complainant and another person of the same sex, real or hypothetical, with a different marital status ("comparator");
2. the relevant circumstances between the complainant and the comparator are the same or at least not materially different;
3. it must then be shown that the treatment given to the complainant is less favourable than that given to the comparator;
4. the difference in treatment is on the basis of marital status.

A typical case of martial status discrimination (in the case of a woman) is where a woman was dismissed or otherwise less favourably treated simply because she was married. It is less straightforward where the reason for the treatment in question comprises both the fact that the complainant is married and the identity of her husband. It is therefore important to identify whether the difference in treatment complained of is attributable to the fact of the marital status, or the identity of the spouse.

The Wife's case was her termination was linked to the fact that she was the Husband's wife and therefore constituted marital status discrimination. The Company's case was that its decision was premised on business concerns related to the Husband's resignation and potential risks to the Company, not on objection to the Wife being married. The critical question before the Court was: Did the Company terminate the IAA because the Wife is married to a specific person (i.e. the Husband) – where the Company's concerns were that person's identity and conduct – constituted discrimination on the ground of marital status?

The Court's decision

State of being married verses identity of the spouse

The Court held that the SDO's protection of marital status is directed at the abstract state or condition of being married, not at the identity of the person to whom one is married. This distinction reflects a fundamental principle in discrimination law: statutes protect people from disadvantage grounded in their possession of a protected characteristic itself, not from disadvantage grounded in the characteristics, identity, or conduct of others with whom they are associated.

Factual findings

The Court found, among other things, that:

1. The Company's management had pre-planned that if the Husband resigned without the Wife also resigning, the Wife's IAA would be terminated. The termination of the Wife's IAA was not a reactive decision made in response to the Husband's notice; rather, it was executed automatically upon receipt of his resignation.
2. The Company was concerned with information leakage, morale, and client relationships were centred on the Husband's identity and his seniority as a Regional Director, not on the fact that the Wife happened to be married to him.

The hypothetical comparator test

The Court held that the appropriate comparator would be a hypothetical female, who is (1) in a close relationship to the Husband similar to that between the Husband and the Wife, for example, a cohabitation relationship with two children; and (2) working for the Company as an insurance agent with similar qualifications, experience and performance abilities, and a team of around 90 downline agents.

The comparator, who would be the romantic partner of the Husband, a prominent regional director of the Company, who had openly expressed his dissatisfaction with the Company, his intention to leave, and his desire to take his team with him (but who had also indicated that his partner would not be leaving), and who had, less than two years ago, helped to orchestrate a large-scale move of agents from another insurer (Convoy) to the Company, including the comparator herself.

The question posed was: Would the Company have treated such a hypothetical comparator differently from how it treated the Wife?

The Court concluded that the Company would not have treated the comparator any differently from the Wife. Considering all the evidence, it was apparent that the termination occurred not because the Wife was married, but because the Husband was the person to whom she was married. The Court held that the Company's decision to terminate the Wife's IAA did not amount to discrimination on the grounds of marital status under the SDO.

Takeaway

In workplace situations where a married couple works for the same employer, disagreements between the employer and the employee concerned may not arise from objection to their marriage as such, but from concerns about the spouse's role, seniority, conduct, or the business risks posed by their association. These concerns, whilst they may engage the fact that they are married, they do not necessarily engage the protected characteristic of marital status under the SDO.

The Cheuk Kit Man case clarifies marital status discrimination protects against disadvantage grounded in the state of being married, not in the identity of one's spouse. Whilst the relationship between the Company and the Wife is one of principal and agent, the same legal principle applies to employers and employees. The SDO protects the characteristic of marital status itself, not merely that the spouse's identity was a factor in the employer's reasoning.

The judgment provides clarity for employers, employees, and HR professionals. Employers may make employment decisions in relation to a married employee based on his or her spouse's conduct, role, or anticipated departure that creates genuine business concerns, provided such decisions would be applied equally to unmarried partners in comparable circumstances. In order to reduce reputational and litigation risks, employers should clearly document and keep records of their business rationale and the spouse's conduct complained of, and maintain consistent policies toward married and unmarried relationships.

As Hong Kong workplaces continue to navigate situations involving married employees and spouses in professional settings, this judgment serves as an important touchstone for understanding the scope of marital status protection under the SDO. As always, if it doubt, it is advisable to seek legal advice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.