HK court decides case where agent was fired days after husband gave notice
A Hong Kong court recently examined a case where an insurance agent challenged her contract termination that occurred shortly after her husband, who worked for the same company, announced his intention to leave.
The worker argued her termination constituted marital status discrimination and breached implied contractual terms requiring good faith and valid reasons for termination.
The worker maintained she had been performing successfully and had given no indication of wanting to leave the company, yet was abruptly terminated without explanation. She challenged the subsequent demand to repay substantial signing bonuses and incentives under clawback provisions.
The case raised important questions about how personal relationships affect employment decisions and when termination might cross the line into unlawful discrimination.
The worker joined FWD Insurance (FWD) in 2015, receiving a signing fee of HK$2.17 million and monthly bonuses of HK$90,601 for 24 months. Her contract included provisions requiring full repayment if terminated within 24 months.
When her husband submitted his resignation on 5 May 2017, the worker's regional director signed her termination form the same day, leaving the "reasons for termination" section blank. Three days later, she received notice of termination without explanation and was immediately locked out of company systems.
Only months later, when repeatedly pressing for explanations, did her regional director allude to her marital relationship as a factor. FWD demanded repayment of all bonuses and incentives, amounting to over HK$4 million.
FWD claimed its main concern was "to control the damage caused by the solicitations of [the employer's] agents by [the worker] and the Husband to join" a competitor. However, the court found no credible evidence supporting this assertion.
When questioned about specific instances of solicitation, the regional director's testimony shifted significantly. Initially claiming he had seen messages from the worker soliciting colleagues, he later admitted he had only "heard rumours" he couldn't confirm.
The worker's husband testified that while he had spoken to some colleagues about leaving, his wife had explicitly told him she would remain with FWD for financial stability. He confirmed he had informed management that she wouldn't be leaving.
The judge found FWD's witnesses "unsatisfactory and unreliable" and concluded: "I find that the real reason why [the worker's] contract was terminated was not because she had engaged in solicitation of agents, or indicated that she was going to leave [the employer], but because [the employer's] management... had pre-determined that in the event that [her husband] gave notice to terminate his contract, [the worker's] contract would also be terminated."
The worker's claim had two main components: breach of implied contractual terms and marital status discrimination under Hong Kong's Sex Discrimination Ordinance (SDO).
The court rejected the implied terms argument, finding the Individual Agent's Agreement clearly allowed termination with six days' notice without requiring justification. The judge noted: "The clause enables either party to a contract to terminate the relationship without having to justify the same to the other party."
For the discrimination claim, the court considered who would be an appropriate comparator - concluding it would be "a hypothetical female in a close relationship to [the husband] similar to that between [the worker] and [her husband], for example, a cohabitation relationship with two children; and working as an insurance agent of [the employer] with similar qualifications, experience and performance abilities, and a team of ninety-odd downline agents."
Based on this comparison, the judge determined: "Considering all the evidence, it is apparent that the termination occurred not because [the worker] was married, but because [the husband] was the person to whom she was married."
This distinction proved crucial - the termination wasn't about her being married, but specifically about who she was married to, which fell outside the protection of the SDO.
The court found in favour of FWD on their counterclaim, ordering the worker to repay HK$4.07 million plus interest under the clawback provisions.
The judge acknowledged the worker's difficult position: "The sudden and summary termination left her with (a) termination of her income source at short notice, (b) a demand for clawback of a substantial amount, (c) abrupt notifications to clients about her departure, and (d) allegations that she engaged in improper conduct."
Despite recognising these hardships, the court concluded: "Whatever one may think of the morality of such a decision, or the way in which [the employer] has sought to justify it after the event, it is not a decision that amounts to discrimination on the grounds of marital status under the [Sex Discrimination Ordinance]."
The case highlights a critical distinction in HK discrimination law between being treated unfavourably because of being marriedwhich is protected) versus being treated unfavourably because of who one is married to (which may not be).
