FAMILY, MATRIMONIAL AND COHABITATION


On 6 June 2019, the Hong Kong Court of Final Appeal dominated that the Hong Kong Government couldn’t deny spousal advantages to personnel because they’re in a same-intercourse marriage.

The Court’s decision only applies to the availability of worker benefits to authorities personnel, however it has expanded neighborhood cognizance on discrimination primarily based on sexual orientation.

While many organizations in Hong Kong already realize the value to their humans and their commercial enterprise from having a various and inclusive staff, all employers should evaluate their policies and practices in light of this selection.

The decision

The applicant in Leung Chun Kwong v Secretary for Civil Service [2019] HKCFA 19 is hired by using the Hong Kong Government as an immigration officer and is entitled to various medical and dental blessings beneath the Civil Service Regulations. Such advantages are usually prolonged to an worker’s family, consisting of their partner.

Following the applicant’s New Zealand marriage to his identical-sex accomplice, the Secretary for the Civil Service knowledgeable the applicant that his marriage become no longer a “marriage” within the that means given to that time period beneath Hong Kong law, and that his partner might consequently not be entitled to spousal benefits.

As Hong Kong has no legal guidelines prohibiting employment discrimination primarily based on sexual orientation, the applicant argued that the blessings selection unlawfully discriminated towards him primarily based on his sexual orientation opposite to the Hong Kong Basic Law (which affords that all Hong Kong residents are identical earlier than the law) and the Hong Kong Bill of Rights. A similar declare became revamped the applicant’s incapability to publish a joint tax evaluation together with his equal‐intercourse marriage companion.

The Hong Kong Court of Final Appeal, in a unanimous ruling, widely wide-spread Leung’s declare that the one-of-a-kind treatment of a equal-sex married couple to a heterosexual married couple by those selections turned into not justified and consequently unlawful. The form of alleviation is still to be determined.

Implications

Since the Court’s choice related to the provision of blessings by way of the Hong Kong Government, the felony ramifications for private zone employers can be restrained. However, the choice comes much less than a 12 months after some other excessive profile decision, QT v Director of Immigration, which discovered that that the Hong Kong Director of Immigration’s refusal to supply dependant visas to identical-intercourse spouses became discriminatory and no longer justified.

Together, the two selections refocus attention at the rights of same-sex couples and recommend declining tolerance via the courts in Hong Kong for discrimination on the idea of sexual orientation.

Despite the constrained software of the Leung choice and the shortage of laws prohibiting employment discrimination on the basis of sexual orientation, there might also nevertheless be room for claims through private area employees, as an instance, based totally upon an alleged breach of the implied responsibility of mutual believe and confidence.

This turned into the basis of a Singapore case, Wee Kim San Lawrence Bernard v Robinson & Co (Singapore) Pte Ltd, wherein an worker claimed he had been forced to surrender due to persecution and unreasonable 婚姻介紹所邊間好 bias because of his homosexuality.

The Leung finding – that there has been no justification for the authorities denying spousal blessings to personnel in a equal-intercourse marriage – may additionally lend weight to a controversy that a failure via an enterprise to provide the equal benefits to same-intercourse employees is irrational and in breach of an implied contractual time period.

Key takeaways

The QT and Leung choices have focused interest on sure discriminatory remedy of identical-sex couples in Hong Kong. The choices may also inspire personnel discriminated on the premise of sexual orientation to seek identical treatment in employment, and employers must review their policies and practices to pick out any discriminatory remedy of this kind.

Aside from the prison concerns, many corporations in Hong Kong already comprehend the fee to their people and their commercial enterprise from having a numerous and inclusive team of workers. This popularity should be supported by using equal opportunity policies and practices, which may additionally increase protections past the ones in the Discrimination Ordinances and which offer opportunities and blessings to employees regardless of their sexual orientation. Employers may also take into account pledging to undertake the Code of Practice in opposition to Discrimination in Employment at the Ground of Sexual Orientation, which inspires employers to get rid of discriminatory practices based upon an employee’s sexual orientation.


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