Now you can say sorry without worrying about getting sued

It’s a new era for apologists everywhere, writes Graeme Macleod

Sorry does indeed seem to be, as Elton John sang, the hardest word. Part of the reason saying sorry can be so difficult is that an apology may be considered an admission of guilt with the potential for financial, even criminal, consequences to follow. That is why we frequently hear somewhat guarded apologies in a time of crisis, which may not achieve their intended effect and, in some instances, can provide extra fuel to the flames of a PR crisis.

The Apologies (Scotland) Act, which came into effect last month, aims to overcome the current reluctance of companies, governments and other organisations to apologise. It attempts to encourage apologies by providing that the civil courts (with the exception of fatal accident inquiries and defamation proceed- ings) will not take an apology into account when considering liability.

However, the Act has a broader purpose beyond protecting certain statements – to encourage a “cultural and social change in attitudes towards apologising”, and a move away from the “entrenched culture in Scotland and elsewhere that offering an apology… is a sign of weakness.”

Evidence from other countries with apology laws suggest they may lead to a decrease in both the amount and cost of litigation. Michigan, for example, saw a 50 per cent reduction in personal injury cases in eight years. It will be interesting to see whether the proposed legislation can achieve its anticipated aims in Scotland, in the personal injury sphere or beyond.

The Apologies Act (Scotland) will be especially relevant to customer-

facing parts of organisations, where an authentic, direct expression of regret can help defuse a difficult situation, and reduce the prospect of it escalating into a legal dispute.

The core element of an apology, as defined in the Act, is an indication that the person is sorry about, or regrets, an act, omission or outcome. It was originally envisaged that guidance, explaining the benefits of apologising early, and providing examples of best practice, would accompany the Act. However, this guidance is not yet available. In the meantime, there are a number of points that organisations should consider.

A meaningful apology, which, in terms of the Act, may be expressed orally or in writing, typically requires a number of elements. Although what is called for will differ depending on the circumstances, it is worth keeping in mind the three R’s – “regret, reason, remedy”. Firstly, it is important to acknowledge what has happened (regret). This can be vital in demonstrating that you understand your customer’s point of view.

An apology should offer a clear, concise explanation of what happened and, if possible, why, (reason). If you do not yet know all the details of why a situation occurred you should pledge to investigate. Finally, it is important to demonstrate your intention to take control of the situation by setting out what actions you intend to take to prevent a recurrence of the circumstances that led to the apology (remedy).

In terms of the Act, an undertaking to look at the circumstances with a view to preventing a recurrence will qualify as part of the apology. However, it is worth noting that, if an apology also includes a factual statement about the situation, or admission of fault, only the apology is inadmissible as evidence of liability. Factual statements and admissions of fault are not covered by the Act. It is important for organisations to be clear about what can and cannot be used as evidence of liability.

While sorry is never likely to be an easy word to convey, it may no longer have to be the hardest. Graeme Macleod is a Partner at CMS