Ten years after the Apologies Act Scotland, ‘Sorry’ can make all the difference in the workplace, writes Donna Reynolds

Walk down a busy street and bump into someone and your first word will be “sorry”. Someone blocks the supermarket aisle and you need to squeeze past: “Sorry.” We say it instinctively, often when we have done nothing wrong.

I’m not convinced we are as generous with those closest to us. My daughter can stand precisely where I need to be in the kitchen and, when I bump into her, my response is more likely to be “why are you standing there?” Had she been a stranger, I would probably have apologised without a thought for whose fault it was.

Maybe familiarity makes us less guarded, but whatever the reason, it made me wonder whether we sometimes do the same at work. A manager handles a conversation badly, an employee upset by something said in a meeting, or a blunt email.

If you've upset someone at work, admitting you were wrong can save problems later (Picture: Adobe)

placeholder image — If you've upset someone at work, admitting you were wrong can save problems later (Picture: Adobe)

Rather than saying, “I’m sorry, I could have handled that better”, the instinct is often to justify, defend or even deny. Once HR or a possible claim enters the equation, saying sorry becomes harder for fear that we’re admitting wrongdoing.

This year marks the 10-year anniversary of the Apologies (Scotland) Act 2016 becoming law and yet, having spent those years advising employers and dealing with workplace disputes, my anecdotal experience is that genuine apologies remain rare. Time is often spent trying to prove something didn’t happen or, where it plainly did happen, explaining why it was justified or not as serious as an employee believes. What the employee wanted was simpler; an acknowledgement things could have been handled better. In other words, a genuine “sorry”.

Under the Act, an apology within its scope can’t, in civil proceedings to which it applies, be used as evidence relevant to deciding liability or otherwise used to the maker’s prejudice. It includes a statement that someone is sorry about, or regrets, an act, omission or outcome. However, there is an important “but”. The protection doesn’t extend in the same way to statements of fact or admissions of fault made alongside it.

Imagine a manager taking a difficult team meeting and an employee later saying the way they were spoken to left them embarrassed and upset. The manager might say: “I’m sorry the way I spoke to you caused you upset. I regret that the conversation was handled in that way and I’ll approach things differently in future.” (I appreciate any managers reading those words have probably felt an icy chill). Compare that with “I’m sorry. I shouted at you in front of the team because I was angry and I accept that my behaviour was inappropriate.”

Donna Reynolds is an expert in employment law

Both contain an apology, but the second also makes statements about what happened and accepts fault. Protection for an apology shouldn’t be confused with protection for every factual statement or admission accompanying it.

Workplace disputes aren’t always about proving who is legally right or angling for a settlement. Sometimes what sits underneath a grievance is more human - a concern nobody is listening, or acknowledging what happened. A genuine apology can sometimes do what a carefully drafted grievance outcome letter can’t. It can lower the temperature and allow people to move forward.

I know not every dispute can be resolved by saying sorry. But 10 years after Scotland legislated apologies, employers remain surprisingly reluctant to try. Perhaps we should take a lesson from the stranger in the supermarket and realise that sometimes saying “sorry” simply means recognising that something could have been handled better.

Donna Reynolds is Legal Director, Kennedys