Balancing corporate oversight and personal boundaries: Lessons from BP’s new code of conduct

Introduction: The Intersection of Corporate Oversight, Workplace Relationships and Privacy

Workplace romantic relationships are pervasive as there is no express employment or labour law principle forbidding such relationships in many jurisdictions. In most cases, the courts are loathe to justify dismissal based on consensual relationship between co-workers, especially where there is equality of bargaining power and no case of exploitation. The Supreme Court of Ontario reiterated this principle in the case of SS v. Huang & Danczkay Property Management Inc. and Bela Danczkay (1999).

In September 2023, British Petroleum (“BP”), one of the world’s largest oil and gas companies, ousted its CEO, Bernard Looney, for failing to disclose personal relationships with colleagues. This high-profile exit prompted BP to introduce a stricter code of conduct, requiring all employees to disclose “familial and intimate relationships at work.” While this move reflects BP’s efforts to prevent conflicts of interest and ensure ethical behaviour in the workplace, it also raises significant concerns about employee privacy and the broader implications of workplace disclosure policies. In an era where data protection and privacy rights are increasingly prioritised, BP’s policy begs the question: where do we draw the line between corporate oversight and employees’ right to privacy?

This article explores the implications of BP’s new policy, analysing how it reshapes employee duties, the central role of employment contracts in defining workplace conduct, and the potential conflict between transparency and privacy. It also examines the role that data protection laws could play in balancing the requirements of employers and the rights of employees in such cases.

Employee Duties: Calibrating Workplace Expectations

Every employee owes his or her employer certain duties. These include loyalty, transparency, and good faith. BP’s updated code of conduct, which mandates the disclosure of intimate relationships, represents an effort to reinforce these duties, particularly among its top managers. The policy seeks to prevent conflicts of interest, favouritism, and situations where personal relationships might skew business decisions or undermine trust within the organization.

However, it also raises concerns about the boundaries between employee workplace obligation and personal life. While the policy may serve to protect corporate integrity, it also risks infringing on employees’ rights to privacy and freedom of association, particularly when it involves disclosing intimate, personal relationships. The requirement to report all intimate relationships at work could be perceived as an overreach, constraining employees (i) from relating or associating with colleagues as they otherwise would; or (ii) to disclose information that they might otherwise prefer to keep private, especially in instances where the relationships, be it intended or actual, do not directly affect the proper discharge of their professional duties.

The Employment Contract: A Double-Edged Sword

The employment contract establishes the terms of the employer-employee relationship, including the implied duties of loyalty and transparency. While BP’s updated code of conduct can be viewed as a formal extension of the employment contract, it also adds a layer of complexity to the question of personal privacy in the workplace.

On one hand, the employee duties of fidelity and loyalty are implied in every employment contract. As such, modern employment contracts must evolve to accommodate corporate governance needs, especially in industries like oil and gas, where leadership integrity is critical. On the other hand, the expectation that employees disclose personal relationships raises legitimate concerns about whether such demands are fair, and more importantly, whether they respect employee personal rights.

It is the view of the writer that the potential for overreach is clear, as intimate relationships that have no bearing on proper job performance or decision-making may unjustifiably come within the purview of a blanket disclosure requirement such as BP’s.

For example, the implication of the common law decisions of the Canadian court in Huang & Danczkay appears to be that although the law does not forbid workplace romantic relationships, it frowns against the breach of employee duties that may occur from such relationships. Nevertheless, the court in the Huang & Danczkay case found that the sexual relationship which had developed between the plaintiff and the defendant was consensual and hence not actionable. The court noted that the test of consent was a two-step process, to wit: (i) an analysis of whether there is a relationship of inequality between the parties which would be expected in a “power dependency” context; and (ii) “proof of exploitation”. What vitiates consent is the element of duress, unconscionability, or exploitation in the arrangement, and the court found that to be lacking in the Huang & Danczkay case.

Data Privacy Concerns

One of the strongest arguments against BP’s blanket disclosure requirement is its potential impact on employee privacy. Employees have a right to keep their personal lives separate from their professional ones, and requiring the disclosure of intimate relationships could be seen as a breach of this boundary. The disclosure of such private information, potentially bordering on sexual orientation and sex life, could also subject employees to judgment, bias, or even potential workplace discrimination, despite the company’s intentions to prevent conflicts of interest.

Furthermore, the scope of BP’s policy (requiring employees to report intimate relationships from the past three years) seems particularly intrusive. Relationships that have long since ended or had no impact on the workplace could still need to be disclosed, which raises additional privacy concerns. Employees may question whether their personal history should really be subject to scrutiny by their employer, especially if it bears no relevance to their current role or responsibilities.

The emerging jurisprudence in Africa appears to align with this view. Justice Rika of the Kenyan Employment and Labour Relations Court, in a landmark 2024 decision, held that employers cannot impose a blanket prohibition on romantic relationships between employees. This decision underscores the principle that personal relationships, absent a clear conflict of interest or impact on professional duties, should not fall within the scope of employer regulation. The decision serves as a critical reminder that privacy rights must be balanced with workplace policies, preventing undue interference in employees’ personal lives.

The Role of Data Protection Laws: Safeguarding Privacy in the Workplace

Data protection laws, such as the General Data Protection Regulation (GDPR) in Europe and other data privacy frameworks worldwide (including the Nigeria Data Protection Act, 2023 (NDPA)), could play a crucial role in moderating disclosure requirements. Under the GDPR and the NDPA, personal data – including information about intimate relationships – falls under special protection, particularly when it is sensitive and unrelated to professional duties. Employees in Nigeria and in jurisdictions governed by the GDPR could challenge blanket disclosure requirements on the grounds that it violates their right to privacy by mandating the collection of sensitive personal information.

For employers, ensuring compliance with data protection laws is not just a legal obligation – it is a way to mitigate the risk of infringing on employee rights. Employers must ensure that the data they collect is processed lawfully, transparently, and for a legitimate purpose. Employee personal data must be adequately protected, with clear guidelines on how such data will be stored, who will have access to it, and how long it will be retained.

Moreover, employees could argue that a blanket disclosure requirement may be disproportionate to or necessary for the company’s stated aim of preventing conflicts of interest. Data protection principles, such as data minimization, suggest that only data that is strictly necessary for a specific purpose should be collected. In this regard, employees might question – and rightly so – whether disclosure policies adhere to these principles, especially if they mandate disclosure of information that is irrelevant in the workplace context.

Commentary: Striking a Balance between Corporate Governance and Privacy

BP’s updated policy on intimate relationships reflects a broader trend among corporations to ensure that personal relationships do not compromise business decisions. However, this policy raises profound concerns about the limits of corporate oversight and the right to privacy. For employees, the requirement to disclose intimate relationships can feel invasive, even if such disclosures are intended to promote ethical conduct. It is not every sexual relationship between employees and their superiors that is involuntary because of inequality of bargaining power. What impairs consent are the elements of duress, unconscionability, or exploitation in the arrangement; and when these are lacking, a blanket disclosure requirement is unwarranted.

Data protection laws provide a safeguard for employees, ensuring that their personal information is not mishandled or unnecessarily collected. BP, like other companies, will need to navigate these privacy concerns carefully to avoid legal challenges or breaches of trust with its workforce. Striking the right balance between corporate governance and employee privacy will be critical in determining the successful implementation of the updated code of conduct.

Conclusion: Balancing Corporate Oversight and Employee Rights in the Modern Workplace

In an age where ethical integrity is critical and employee privacy is equally cherished, corporations like BP must carefully navigate these competing priorities. Generally, there is nothing wrong with workplace romantic relationships. Accordingly, the enforceability of a disclosure requirement will depend on certain parameters, including its clarity, the existence of a clear conflict of interest and/or or impact on professional duties of the relevant employees. As the Johannesburg Labour Court put it in Rustenburg Platinum Mines Limited v. UASA obo Pietersen and Others (2018), we are all part of homo sapiens with feelings and emotions, and it is possible for the office affair to turn into a ‘happily thereafter union’.

By adhering to data protection principles and implementing transparent, proportionate policies, employers can maintain effective corporate oversight and strengthen employee trust. Employers must therefore strike a careful balance. In upholding the highest ethical standards, care must be taken for workplace policies not to become intrusive or violate employee rights. Overall, employers must carefully consider how disclosure policies could affect employee morale, workplace culture, and overall trust in the employer-employee relationship.

Mayowa Arokodare writes from Lagos, Nigeria