“You’re married to him?!” Is it an issue for employers in making employment decisions?

A person’s “marital status” is one of the protected characteristics under the Sex Discrimination Ordinance (“SDO”).

In the case of Cheuk Kit Man v FWD Life Insurance Company (Bermuda) Limited and Others [2025] Ms Cheuk claimed against FWD Life Insurance Company (Bermuda) Limited (“FWD”) and various managers on the basis that her termination was in part motivated by the fact that she was married to another former employee.  She alleged that the termination therefore amounted to a breach of contract and unlawful discrimination under the SDO.

In the earlier case of Wong Lai Wan Avril v Prudential Assurance Co Ltd [2010] (“Prudential”) an employee alleged that her employment was terminated because she was the wife of a specific individual which constituted marital status discrimination by her employer. The Court dismissed the employer’s application to strike out the claim and held that there was a reasonably arguable case that taking into account a marriage to a specific person could constitute “marital status” discrimination. 

Case Summary

Ms Cheuk was employed by FWD as Senior Agency Director. Shortly thereafter, Ms Cheuk’s husband, Mr Billy Ng (“Mr Ng”) also joined FWD.

Subsequently, Mr Ng gave notice to FWD to terminate his employment.  On the same day of Mr Ng’s notice, Ms Cheuk’s direct supervisor initiated termination of Ms Cheuk’s employment.  3 days later, FWD formally gave notice to terminate her employment without any reason for termination.  At one point, Ms Cheuk learnt that her employment was terminated because she was married to Mr Ng, which the Court found to be a real reason for her termination.

Contrary to the allegation by Ms Cheuk, however, the Court held that this did not constitute discrimination by reason of marital status under the SDO. the court reviewed the earlier decision in Prudential, the legislation and also the UK case of Hawkins v Atex Group [2012] ICR 1315. The court stated that:-

127.  What this analysis highlights is the importance of identifying whether the difference in treatment complained of is attributable to the fact of the marital status, or the identity of the spouse. The UK anti-discrimination legislation is targeted at the former, not the latter.  This is the case for the SDO as well, as can be seen from the wording of ss.4, 7 and 10.

…

130.  On the point about the approach to interpretation:

130.1  I bear in mind that the legislation should be interpreted with a purposive approach so that its objects can be achieved: Tsang v Cathay Pacific Airways Ltd [2002] 2 HKLRD 677 at [23] to [26] (Mayo VP);

130.2  whilst the SDO should of course be interpreted as far as possible to conform with the Basic Law (see in particular article 25) and the Hong Kong Bill of Rights (see in particular article 22), this does not mean that it should be interpreted otherwise than in accordance with its plain meaning: cf. M v Secretary for Justice at [57] (Tang VP).” [underlined is our emphasis]

Separately, the Court found that there was no implied term in Ms Cheuk’s employment contract preventing FWD from terminating it without reason. Rather, it contained an express and unrestricted right of termination to be exercised by either party.

Ultimately, Ms Cheuk’s case was dismissed by the Court.

Meaning of “martial status”

It should be noted that under the SDO, the term “marital status” is defined as:-

“The state or condition of being –

• single;
• married;
• married but living separately and apart from one’s spouse;
• divorced; or
• widowed.”

In Prudential the Court adopted a “generous interpretation” to give a wide meaning to the term “marital status”, which seems to suggest that marital status discrimination under SDO could cover discrimination based on “the identity of the person to whom the complainant is married or related”.

In contrast, and as mentioned above, the decision in Cheuk seems to clarify that any purposive interpretation of the SDO cannot go against the plain meaning of the words. The Court in Cheuk also clearly stated that the focus of marital status discrimination is on the the general status or state as defined above, not the identity of the person’s specific spouse (as may be applicable).

Implications for Employers

Cheuk case seems to set out the clear scope of the meaning of the term “marital status” under the SDO. Notwithstanding this, employers should handle dismissal of employees carefully so as to minimise the risk of any unnecessary dispute. In particular, and based on how the dispute arose in Cheuk case, employers should be careful in making:-

• reference to a person’s protected characteristics if those played no part in the decision to terminate and which may give rise to a baseless allegation of discrimination( please refer to our overview of discrimination laws here); and

• any unnecessary comments or explanation regarding the reason of dismissal as an employer is generally not legally required to do so which might risk an improper inference of discrimination.

In situations where an employer suspects that the termination process may become adversarial or contentious, it is preferrable for the employer to keep its own internal and contemporaneous evidence setting out the lawful and genuine reason for dismissal.  Please refer to our article on Legal Update: Importance of Contemporaneous Records in Defending Against Discrimination Claim.

Russell Bennett and Mark Chiu

If you have any questions, please contact Russell Bennett or Mark Chiu.

Russell Bennett

Partner | Email

Mark Chiu

Partner | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.