Without prejudice: How and when to use it in negotiations?

This guide explains how and when without prejudice communications are used in correspondence and meetings during employment exit negotiations. 

It also outlines the difference between them and other ‘open’ forms of communication.

For further information, have a look at our main guide on the subject which also helps you construct without prejudice letters and emails. Or why not try our free online Letter Builder

What is ‘without prejudice’?

It’s a legal tool that limits who can have access to the contents of a written communication.

For example, a letter/email, or recording/transcript of a verbal conversation such as you might have in a meeting or over the phone. 

In particular,  the content of any such communication can’t be shown to a judge by your employer if you are in a dispute with them and later take your claim to an employment tribunal for judgement.

Without prejudice ‘rules’ can be applied to any kind of communication – whether it’s verbal communication in a meeting, or written by way of a letter or email.

When the without prejudice rule is used in an email, settlement agreement, or conversation, it has to be kept off the record by both parties in the dispute (you and your employer).

The contents also have to be kept confidential between both parties (and your legal representative if you have one).

Why do people in a dispute need without prejudice?

Without prejudice is a tool originally introduced into English law to make it easier to achieve out-of-court settlement agreements. 

In this way, taxpayers’ money could be saved by cutting down on the number of disputes which ended up in court.

Because the parties involved in a legal dispute know that without prejudice offers can’t be used as evidence of guilt in court, they feel safe in making dispute settlement offers.

If this protection was removed, then no one would make any offers.

So, you wouldn’t say you’d accept a £7,500 settlement if you thought that the judge would find out about it because you’d be telling the judge that your claim was worth £10,000. 

 

When would you use without prejudice?

There has to be a dispute between the parties in order to qualify.

So,  let’s say that you have a grievance against your employer (no matter what it may be about), or that your employer has what they think is a genuine issue with, say, your performance. 

In either case,  you can usually assume that, if one of the parties wants to start negotiations on a without prejudice basis, then it will qualify as being a dispute between the parties.

For your purposes in negotiating a settlement agreement, it is highly likely that there already is a dispute and therefore it’s safe to assume that you or your employer can commence without prejudice communications. 

Requirements for a without prejudice communication

The main requirements for making a communication or settlement agreement document ‘without prejudice’ are as follows:

[1] If it is a written document, then it needs to be clearly marked with the words ‘without prejudice’, or ‘without prejudice and subject to contract’.

[2] If it is a verbal exchange, then you or your employer need clearly to say ‘do you mind if we speak without prejudice’ or words to that effect. (See our guide on such exchanges in meetings and conversations at work.)

[3] There needs to be a genuine attempt to settle the dispute out of court, for example, an offer of an amount of money to settle.

It is not enough to just talk about the merits of the case and just say the words ‘without prejudice’ as it is likely in that scenario that the protection would not apply.

See our range of letter templates and examples for how to present relevant correspondence and the kinds of disputes that you would use this protection for.

 

Negotiations opened by the employer

Generally, if your employer wishes to open negotiations about terminating your contract, they will either call you to a without prejudice meeting or ask in a meeting if you can speak on a without prejudice basis.

Your employer will then set out the reasons for the discussion and their proposal for a financial settlement in return for the termination of your employment.

They will often then hand you a letter marked ‘without prejudice’. The letter will set out the details of their offer.

It will also sometimes outline the reasons for the offer and the consequences of not accepting (for example, you will commence a performance procedure, or there will be a redundancy exercise).

 

Negotiations opened by the employee

It is less common for an employee to ask for a without prejudice meeting or phone call.

That’s because it is a big step for an employee to open negotiations and it’s therefore usually better for you to set out the issues on paper in a without prejudice letter, rather than verbally.

So, if you wished to initiate negotiations with your employer, a sound approach would be for you to send them such a letter setting out the reasons for wishing to negotiate and the terms on which you are willing to settle.

What’s the difference between ‘open’ and ‘without prejudice’?

Open communications:

‘Open’ communications mean any email, letter, phone call or meeting which doesn’t have without prejudice protection. For example:

• You might write a letter to your employer resigning from your job, or raising a grievance. 
• During an employment tribunal case, you might request the disclosure of vital evidence or contact details for a witness. 

Each of the foregoing examples would be open.

All open correspondence can be referred to in front of a judge.

For example, you can point out to the judge that you wrote an open letter to your employer requesting copies of your HR file, but no response was ever forthcoming, therefore they must be hiding something. 

Without prejudice communications:

You can’t use anything that’s written or spoken about under the protection of without prejudice to build your case, or as a reason for your resignation, except in specific circumstances (see below).

So, if your employer raises an issue with you in a without prejudice discussion which could breach trust and confidence, you cannot use this against them.  

However, in exceptional circumstances, without prejudice letters and other such exchanges can be used in legal proceedings.  These circumstances are:

[1] If the exchanges uncover evidence that may allow a settlement agreement to be rejected on the grounds that it’s based on misrepresentation, fraud or undue influence;

[2] If the exchanges unearth clear evidence of perjury, blackmail or other unambiguous wrongdoing or criminal behaviour;

[3] As evidence that a claimant has acted reasonably in mitigating their losses by settlement;

[4] As evidence when both parties to the without prejudice material agree that it should be admitted in court.  

For example, a letter marked “without prejudice save as to costs” could be shown to a judge after the conclusion of a case to make a ruling on any outstanding costs issues.

It’s otherwise very rare for transcripts of without prejudice conversations or correspondence to be shown to a judge in employment proceedings.

If it was, then it would only usually be in discrimination or whistleblowing cases when evidence of wrongdoing has arisen in correspondence.

 

Next Steps

For further practical information on the use of without prejudice, see our helpful guides and examples and letter templates listed below.

Monaco Solicitors are employment law specialists, who only work on employment legal cases and who only represent employees (not employers).

We can help you conduct negotiations with your employer to reach a settlement agreement or negotiate on your behalf if you prefer

Contact us via:

• Our website link
• Phone 020 7717 5259
• Email: communications@monacosolicitors.co.uk