Once again, we’re welcoming David Morgan – Employment Law partner at Burness Paull LLP – as a guest to the Pactive blog. His pieces are always a good read and I’m particularly impressed by anyone who can get a Song into a blog!
“It’s sad, so sad. Why can’t we talk it over?…” Perhaps Elton John was wrong after all: “sorry” no longer seems to be the hardest word. So says the Scottish Government at least, as the curiously titled Apologies (Scotland) Act 2015 was passed before the Scottish Parliament on 19 January 2016, with support across the political spectrum.
What in particular have we got to be sorry about in Scotland that has provoked this piece of legislation? The Act is designed to give legal protection to those who express an apology so that it is inadmissible in certain civil (that is, not criminal) legal proceedings as evidence of anything relevant to determining liability. It’s a form of the “without prejudice” rule set out in legislation meaning that an apology cannot be held against you.
But, for me, it is much more than that. In my field of employment law, “sorry” has for a long time genuinely been the hardest word. Points of principle become so ingrained in workplace disputes steeped in grievance, conflict and bad behaviours. You’d be surprised how often I’ve heard a client say “I’d rather pay you than pay him”! At an earlier stage of my career, we employment litigators would scoff at the suggestion of issuing an apology as part of a settlement package. The best the claimant might have hoped for was an agreed employment reference. But often it was clear that “sorry” was all the disgruntled employee was looking for. Or take a ‘trip and slip’ case in the workplace – bosses are afraid to say sorry to an injured worker in case it comes back to haunt them in court as an admission of liability.
I certainly turned a corner when I took my mediation training with John Sturrock QC and Core Mediation back in 2008. A point of principle in a workplace dispute can quickly fall away in mediation if adverse parties are prepared to rise above it and put themselves in the shoes of the other. Why not just say sorry if that’s what it takes to get the matter resolved? Mediation gives a “safe” environment (a without prejudice “bubble”, if you like, for the parties to resolve their differences) and we have often encouraged our employer clients to apologise for the way in which an employee feels that they have been treated in the interests of building bridges and resolving disputes. But the use of language is key. The recipient of an overly scripted ‘apology’ or statement of regret will see right through it. If it’s not authentic, it could make things worse.
The Apologies (Scotland) Act takes things to another level by enshrining the safety we have in mediation within law. It means that any statement made by or on behalf of a person which indicates that the person is sorry about, or regrets, an act, omission or outcome (even if it includes a statement which contains an express or implied admission of fault) is not admissible in evidence relating to liability. It covers apologies made after the Act came into force and the rule is not retrospective.
The Act applies to “proceedings before tribunals” and therefore covers claims before the Employment Tribunal in Scotland. This legislation has been controversial, particularly with commentators in the legal community but, for me, I see a real value of its application to employment law disputes, providing both sides with the opportunity to offer an open and honest apology. Saying sorry costs nothing. But it doesn’t mean that talk is cheap – if that’s what it takes to get a potentially costly or toxic workplace dispute resolved.
This article was published in The Herald on 15 February 2016. To view it click here.