On 6 June 2019, the Hong Kong Court of Final Appeal ruled that the Hong Kong Government could not deny spousal benefits to employees because they are in a same-sex marriage.
The Court’s decision only applies to the provision of employee benefits to government employees, but it has increased local focus on discrimination based on sexual orientation.
While many businesses in Hong Kong already recognise the value to their people and their business from having a diverse and inclusive workforce, all employers should review their policies and practices in light of this decision.
The applicant in Leung Chun Kwong v Secretary for Civil Service  HKCFA 19 is employed by the Hong Kong Government as an immigration officer and is entitled to various medical and dental benefits under the Civil Service Regulations. Such benefits are typically extended to an employee’s family, including their spouse.
Following the applicant’s New Zealand marriage to his same-sex partner, the Secretary for the Civil Service informed the applicant that his marriage was not a “marriage” within the meaning given to that term under Hong Kong law, and that his partner would therefore not be entitled to spousal benefits.
As Hong Kong has no laws prohibiting employment discrimination based on sexual orientation, the applicant argued that the benefits decision unlawfully discriminated against him based on his sexual orientation contrary to the Hong Kong Basic Law (which provides that all Hong Kong residents are equal before the law) and the Hong Kong Bill of Rights. A similar claim was made over the applicant’s inability to submit a joint tax assessment with his same‐sex marriage partner.
The Hong Kong Court of Final Appeal, in a unanimous ruling, accepted Leung’s claim that the different treatment of a same-sex married couple to a heterosexual married couple by these decisions was not justified and therefore unlawful. The form of relief is still to be determined.
Since the Court’s decision related to the provision of benefits by the Hong Kong Government, the legal ramifications for private sector employers may be limited. However, the decision comes less than a year after another high profile decision, QT v Director of Immigration, which found that that the Hong Kong Director of Immigration’s refusal to grant dependant visas to same-sex spouses was discriminatory and not justified.
Together, the two decisions refocus attention on the rights of same-sex couples and suggest declining tolerance by the courts in Hong Kong for discrimination on the basis of sexual orientation.
Despite the limited application of the Leung decision and the lack of laws prohibiting employment discrimination on the basis of sexual orientation, there may still be room for claims by private sector employees, for example, based upon an alleged breach of the implied duty of mutual trust and confidence.
This was the basis of a Singapore case, Wee Kim San Lawrence Bernard v Robinson & Co (Singapore) Pte Ltd, where an employee claimed he had been forced to resign as a result of persecution and unreasonable bias due to his homosexuality.
The Leung finding – that there was no justification for the government denying spousal benefits to employees in a same-sex marriage – may lend weight to an argument that a failure by an employer to offer the same benefits to same-sex employees is irrational and in breach of an implied contractual term.
The QT and Leung decisions have focused attention on certain discriminatory treatment of same-sex couples in Hong Kong. The decisions may encourage employees discriminated on the basis of sexual orientation to seek equal treatment in employment, and employers should review their policies and practices to identify any discriminatory treatment of this type.
Aside from the legal considerations, many organisations in Hong Kong already recognise the value to their people and their business from having a diverse and inclusive workforce. This recognition should be supported by equal opportunity policies and practices, which may extend protections beyond those in the Discrimination Ordinances and which offer opportunities and benefits to employees regardless of their sexual orientation. Employers could also consider pledging to adopt the Code of Practice against Discrimination in Employment on the Ground of Sexual Orientation, which encourages employers to eliminate discriminatory practices based upon an employee’s sexual orientation.
For more information, please contact Gareth Thomas, Tess Lumsdaine or your usual Herbert Smith Freehills contact.