The article below first appeared in Criminal Law & Justice Weekly. In it, we outline the differing levels of familiarity with the current law that we have come across among lawyers in our professional lives and in preparing this campaign.
We have seen that businesses often simply to turn to their corporate lawyers who, as experts in company and commercial law, may quickly get to the edge of their comfort zone. So, feeling cautious, they advise their clients to say and do nothing when they should perhaps seek advice from their more experienced colleagues themselves.
Guy Corbet, Nick Wright and Sue Stapely write explaining the campaign
The Apology Clause campaign has been set up to make it easier for businesses to behave with compassion when things go wrong, to help victims have better recoveries.
There is a huge body of evidence that timely and meaningful apologies when something has gone wrong can make a real difference to how well the victims recover.
Sometimes, without an apology someone who has suffered may be frozen in the moment of their darkest trauma. A meaningful apology can help them move on and rebuild their lives.
Apologies help victims get back to their former lives
It is easy to argue that until victims have been restored as close as possible to their former lives then natural justice has not been done. Yet too often the starting point for businesses and their legal advisers is that they should not risk legal consequence.
The law supports apologies. Clause 2 of the Compensation Act 2006 says “an apology, an offer of treatment or other redress, shall not itself amount to an admission of negligence or breach of statutory duty”.
The difficulty, though, is that this clause is not well known by businesses, lawyers and insurance companies. Even if it is known, the legislation is largely untested so lawyers resist using it, particularly when there are criminal charges and a possible trial.
We have launched this pro bono campaign to raise awareness of this law so that it is used more often. Over time, we hope that the body of case law will help clarify it further. If necessary, the government should introduce new legislation to do this.
An English and Welsh Apology Act would bring us into line with Scotland and many other countries which already have one.
We have spent too much of our professional lives, as communications and crisis management advisers, working with businesses to protect their reputations when things have gone wrong.
Too often, we find ourselves in discussions between our clients and their legal advisers who argue that any sort of apology could invite legal retribution. So it is best to say nothing, they say. Regardless of the impact on the reputation of the business. Regardless of the impact on the lives of victims.
Of course, that is not to argue that businesses should admit liability or responsibility when this is not the case, but that is not what the law says. And it is not what we are campaigning for.
Differing levels of legal understanding
In discussions we have had with lawyers in our professional lives and in preparing this campaign we have seen different levels of awareness of what the law says and how it should be implemented.
A senior partner from a leading city law firm once argued that the principles behind Thomas Cook’s refusal to apologise were universal and should be applied consistently.
He refused to accept alternative approaches, until I showed him this evidence that the Thomas Cook executives in question were under personal police caution when they were giving evidence to the coroner. Only then did he concede that that situation and our client’s were different and so those principles may not apply.
We have spoken to several lawyers and regulators who have been unaware of the clause in the Compensation Act 2006. Others, while aware of it have felt that it should simply be used more often. Others still are familiar with it but feel it needs to be clarified to define what is meant by an apology.
We believe this patchy understanding comes in part from the habit of businesses simply to turn to their corporate lawyers with any question. Very often, as individuals, these experts in company and commercial law may very quickly get to the edge of their comfort zone, and so feel the need for caution. So they advise to say nothing when they should perhaps seek more experienced advice themselves.
The damage of non-apologies
Consequently, too many statements are designed to be meaningless.
When a United Airlines passenger was filmed being dragged, kicking and screaming, off one of their flights, the CEO’s first statement said: “I apologise for having to re-accommodate these customers”. Really? Did anyone think that didn’t sound foolish?
In the UK, Faizah Shaheen was detained at the airport on her return from her honeymoon on Thomson Airlines for reading a book about Syrian art. The airline said: “We’re really sorry if Ms Shaheen remains unhappy with how she feels she was treated”. She had read a book.
The difficulty is that these banal non-apologies do nothing to defend the reputations of businesses. Among other things they are devoid of compassion.
A hollow fake apology is worse for the people affected.
A timely and meaningful one can make a big difference to how people move on from traumatic events in their lives if, indeed, they are able to.
Law Professor Prue Vines from the University of New South Wales argues that in the Maple Leaf case prompt action to take responsibility and look after the victims of a listeria outbreak saved the business from expensive litigation.
A class action by victims that had originally set out aiming for $100 million compensation settled for much less. The class was so impressed by how well Maple Leaf had managed the incident.
How to say sorry
A simple apology can sometimes lift the burden that victims very often carry for a long time after a trauma. It can enable them to move on. To rebuild. To get back to a semblance of normality.
Our campaign is to help this. To raise awareness of the law. To get it used more often and, ultimately, to get it clarified through case law or with a new act of parliament.
Please help us do that by committing to support the campaign, by encouraging businesses to do so too, by signing the petition and most importantly, by encouraging businesses to make use of the Apology Clause in the 2006 Act.
Support the campaign: http://chn.ge/2zmpuxA
Guy Corbet, Nick Wright and Sue Stapely (a solicitor) are independent communications consultants and co-founders of the Apology Clause campaign (www.apologyclause.com and @ApologyClause).