Too late to apologise?

by Human Capital19 Jul 2012

It’s a fear that has plagued some of the top organisations, but a reluctance to issue a public apology has at times, fanned the flames of litigation rather than limit liability.

According to one communication consultancy firm, the fear of publicly saying sorry stems from confusion, and a misunderstanding of the impact. Yet at times when a controversial message needs to be delivered to clients, staff, shareholders or the media, many executives wanting to demonstrate transparency and leadership continue to be constrained by a misplaced fear of litigation. “There is a groundswell of executives who realise that the right kind of apology can save their brand and reputation as well as counteract litigation, whereas the wrong kind of statement, poorly delivered, will only inflame the situation,” Geoffrey Stackhouse from Clarity Solutions said.

For HR professionals tasked with mitigating an industrial dispute, depending on the magnitude, it’s not impossible to repair the relationship, HR consultant Linda Norman previously told HC. The first thing employers must do is to try and restore that relationship as soon as possible in order to re-establish trust and get people back to productive work, and when an employer has been at fault, an apology can count for a lot in these situations.

The process of restoring the relationship should begin with an explanation of what happened to all relevant stakeholders, what the outcomes have been, and what the plans are moving forward. “There’s often a lack of information in these scenarios or misinformation, or even distorted information – so getting back to the right information and giving it out as quickly and clearly as possible is extremely important,” Norman commented. “People are human, we know that everybody makes mistakes, what we can’t accept and infuriates is the cover up.  When a professional comes clean and admits to having made a mistake, and puts some context to it, we can accept it and move on,” Stackhouse added.

Apologies and the law

Legislation relating to using apologies as evidence of fault or liability in most civil actions differs from state to state. According to Clarity Solutions:

  • In New South Wales, apology law legislation excludes an apology as evidence of fault or liability in most civil actions, including intentional torts, defamation and actions under certain statues.
  • In the Australian Capital Territory, intentional torts, sexual assaults/misconduct, injury from dust diseases or tobacco use are included.
  • Similarly in Tasmania, although dust diseases are excluded, the Northern Territory adds personal injury and Victoria and South Australia cover the lot.
  • Furthermore, some legislation directly prevents an apology from affecting insurance contracts.

Stackhouse added that whether a company leader makes an insincere expression of regret, a spontaneous admission of error or a heartfelt apology, commenting on feelings of guilt won’t determine liability – in each state and territory, courts will do that based on the law. The paradox is that often when an apology is delivered properly in the first instance, the aggrieved party is likely to be satisfied and let the matter drop. Many court cases are indeed the result of aggrieved parties pursuing litigation when explanations and empathy has not been forthcoming. Stackhouse pointed to an Australian study of medical complaints which found some 97% of complaints that received a properly-delivered explanation and apology did not proceed with litigation.

Clarity Solutions offered the seven most common apology sins:

  1. The blame game apology:  “I am so sorry you are angry” – what you are  really doing is passing the buck instead of addressing the hurt, “I am so sorry I came home drunk last night and missed your birthday.”
  2. The justification:  “I’m sorry but …” which is a shameless defence of your actions by showing that you had no other option.
  3. The passive-aggressive apology which frames a fault as a virtue: “I am sorry if my honesty offends you but…” – followed by a poison spray. This is a close sibling to “I make no apology for my honesty … when I called you a two faced Troll.”
  4. The ambit apology: focussing on the lesser/safer evil – “I am sorry for the inconvenience” instead of “I am so sorry I wrote off your car and killed your dog.”
  5. The vacant apology - where you clearly don’t mean it but feel obliged to go through the motions - usually begins with “I deeply regret” the incident or “I was very concerned…”  Easy to pick because it’s all about ‘me’ rather than ‘you’.
  6. The Confessional – an orgy of remorse and self-flagellation when you’ve been caught out.
  7. The Grudging apology – is the most pointless of all as every word is forced with every word and gesture confirming it’s against your will.

* K Anderson, D Allan and P Finucane, ‘A 30-month study of patient complaints at a major Australian Hospital’ (2001) 21 (4) Journal of Quality in Clinical Practice 109.


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