Sorry? The lawyers may not be entirely wrong
3rd November 2015
The media like to knock someone when they are down and Thomas Cook is in the dock again. Castigated for having let the lawyers rule the roost.
For once (well, there's VW too, but that's more about crime than reputation) there's evidence that poor communications has had a real, and brutal, impact on share price. There's no need here to repeat the details.
In contrast, the Merlin response to the Alton Towers disaster was heralded as a model in crisis management.
Up to a point that may be true, but only up to a point. Merlin and Thomas Cook were different cases with different considerations. In Merlin's case, since everything that happened was on its property and under its direct control, it is much easier to see why taking responsibility was more cut-and-dried.
For sure, communicators and crisis management experts will argue that it's possible to apologise without admitting liability. And it is. "I'm sorry for the way you feel". "I'm sorry for the trauma." "I'm sorry your cat's missing."
In none of those examples do I admit responsibility and, semantically, it would be as absurd as it is flippant to construe that I was responsible for the lost cat. Up to a point.
The difficulty is that the law is not so cut and dried. The UK Compensation Act 2006 states very clearly that: "an apology, an offer of treatment or other redress, shall not itself amount to an admission of negligence or breach of statutory duty".
Well, that seems pretty definitive. It's what's called an "apology act". The UK legislation follows a body of similar legislation elsewhere in the world.
In Canada, the apology act is sufficiently clear and well established to enable the CEO of Maple Leaf Food to say that the two sets of advisors he didn't listen to were the lawyers and the accountants.
That decision to do the right thing is credited with saving his brand and business.
The difficulty in the UK is that the law is not so clear. Prue Vines, law professor at the universities of New South Wales and at Strathclyde, is something of an expert in this field, and her analysis of apologies and civil law in the Edinburgh Law Review is worth reading.
In a nutshell she concludes that the UK law is so ill-defined (and untested) that most cautious lawyers will still advise against apologising. She goes on to look at the beneficial impact an apology can have on the healing process. And the evidence suggests full apologies can reduce the likelihood of civil litigation so it's good for the insurers too.
In other words, there is no reason not to apologise when things go wrong and, whilst it is easy to rant and blame the lawyers for not allowing it, they do have their jobs to do too.
The best advice for brands still remains to do the right thing. For all that the law may not be clear, as we have seen, customers and the markets will also make their judgements. And that’s how it should be.