The background
By its very nature, the relationship between employer and employee is unique. Employment provides not only financial rewards, but can be a source of social status and a measure of self-worth. It is hardly surprising, then, that when a dispute arises between an employer and employee, emotions can run high. In this context, the value of an apology should not be underestimated.
The fear that making an apology may prejudice a party’s legal position means that apologies are rarely forthcoming in such disputes. In addition, insurance policies containing terms which prohibit the policyholder from making an admission of fault, without the insurer’s consent, create a significant barrier and, in practice, insurers rarely agree (unless, for example, there has been a clear breach).
How has the situation changed?
This general reluctance to offer apologies may change once a new law recently passed by the Hong Kong government comes into effect. The legislative intention behind the apology ordinance was to remove some of the most common obstacles to parties making an apology, so as to facilitate the resolution of disputes and enable early settlement without the need for recourse to formal legal action.
Once in force, the apology ordinance will give statutory protection to any apology (written, oral or by conduct) made in a civil dispute, including disputes between employers and employees. Under this new law, an apology will not constitute an admission of fault or liability (even if it includes such an admission), nor will it be admissible as evidence in legal proceedings, where it might be used to the detriment of the apology maker. The law also provides that an apology will not void or affect insurance cover.
The definition of “apology” under the ordinance is broad and includes so called “partial” apologies (those saying sorry or expressing regret) and “full” apologies (those admitting fault). This is a significant point of difference between the apology ordinance in Hong Kong and similar laws adopted in other jurisdictions. For example, in the UK and the majority of US states, apology legislation covers “partial” apologies only.
However, the Hong Kong legislature felt that approach was too narrow, and that it was vital that the protection conferred on apology makers by the ordinance be extended to admissions of fault in order to maximise its potential to facilitate early resolution of disputes by encouraging full and burden-free apologies.
Whether this extension of the protection of the law to cover admissions of fault will make it more difficult for a potential claimant is open to debate. While a claimant will, prima facie, not be able to rely on the apology or any associated admission of fact in court as proof of wrongdoing, they may still separately obtain evidence related to a statement of liability or fact by other independent means, for example, during discovery or during cross-examination.
It is also possible that information disclosed in such an apology may lead a claimant to identify other evidence of fault on which they may rely, in the event of litigation. In any case, the government felt that encouraging the settlement of disputes by enabling protection to apology makers was the more pressing priority.
What does this mean for employers and employees?
This development is significant as Hong Kong is the first jurisdiction in Asia to enact apology legislation and its law is, to date, the broadest enacted worldwide.
When contemplating whether or not to make an apology it will be important to understand that protection under this legislation is not absolute. A late amendment to the bill was introduced to counter the concern that potential claimants to whom an apology has been given will be disadvantaged by the protections conferred under the legislation. That amendment provides that, in “exceptional circumstances”, the tribunal can admit a statement of fact made by an apology maker.
Only time will tell if this law, which has been subject to thorough scrutiny and careful drafting, strikes the right balance and will lead to genuine apologies and the early settlement of disputes. However, the protections it offers have the potential to significantly affect the manner in which both employers and employees deal with disputes, and the scope to substantially change the way evidence, settlement and even insurance are approached.
This article appeared in the Classified Post print edition as The scope for 'sorry' under new apology ordinance.
