How to use without prejudice

In this section of the website one of our solicitors, Will Burrows, introduces the principles and practices associated with  using without prejudice correspondence/meetings and explains when and how to use without prejudice rules, compared with ‘open’ communications.

Two men having a meeting

Introducing the concept of ‘without prejudice’ communications

This guide will look at the meaning of ‘Without Prejudice’, and how/when it is used in practice in employment exit negotiations   The term is likely to feature in any employment negotiation, so it is vital to understand what it means and how to use the protections that it allows in negotiations.

What does ‘without prejudice’ mean?

Without prejudice is a legal term which means ‘without detriment to any right or claim’.  In non-legal speak, this means that whatever is said or done on a without prejudice basis cannot later be used to your disadvantage should you decide to make a claim in an employment tribunal against your employer. So, generally speaking (and there are some exceptions), if without prejudice protection applies to a situation, whatever is said and done in that situation (whether it’s in a meeting, a letter, an email etc), cannot later be used in evidence or relied upon by any party.

This means that there is an element of protection for the parties in a dispute if they open discussions on a without prejudice basis. (It is also known as ‘without prejudice protection’, or ‘without prejudice privilege’.)  Any discussions undertaken under the cloak of this protection or privilege are confidential between the parties.

In order for this protection to apply, there must be a genuine dispute between the parties, the correspondence or conversation must be declared to be on a without prejudice basis, and the discussions or correspondence which take place under without prejudice protection must be a genuine attempt to resolve this dispute.

When the without prejudice rule applies, the particular email, settlement agreement, or conversation which is without prejudice is something which the two parties in the employment dispute (you and your employer) have to keep off the record. So, if the case goes to tribunal, that without prejudice item cannot be brought to the attention of the tribunal or mentioned to the judge.

Why does the rule of without prejudice exist?

Without prejudice was introduced into English law to make it easier to achieve out-of-court settlement agreements, and therefore to save tax-payers’ money by cutting down on the amount of cases which end up in court. Because everyone knows that you can’t use without prejudice offers as evidence of guilt in court, people feel safe in making such offers. If the without prejudice protection was removed, then no one would make any offers. So, you wouldn’t offer to 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 is worth £10,000.00. 

How is without prejudice implemented in practice?

Firstly, there has to be a dispute between the parties in order to qualify for without prejudice protection. So,  if you have a grievance against your employer (no matter what it may be about), or if your employer has what it thinks is a genuine issue with, say, your performance, then 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.

A without prejudice communication has two elements

There are two elements to making a communication or settlement agreement document ‘without prejudice’:

[1] It needs to be clearly marked with the words ‘without prejudice’, or ‘without prejudice and subject to contract’, or if it is a verbal conversation then you or your employer need clearly to say ‘do you mind if we speak without prejudice’.

[2] There needs to be a genuine attempt to settle the case 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.

Without prejudice negotiations opened by the employer

Generally, if your employer wishes to open negotiations about the termination of your contract on a without prejudice basis, 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’ which will set out the details of that offer and, sometimes, 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).

Without prejudice negotiations opened by the employee

It is less common for an employee to ask for a without prejudice meeting or phone call, because for an employee to open negotiations is a big step 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 a without prejudice letter setting out the reasons for wishing to negotiate and the terms on which you are willing to settle.

 

The difference between ‘open’ and ‘without prejudice’

Open correspondence is any email, letter, phone call or meeting which doesn’t have without prejudice protection. So, you might write a letter to your employer resigning from your job, or raising a grievance, or during a tribunal case you might request disclosure of vital evidence or contact details for a witness, all of which 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 ex employer requesting copies of your HR file, but no response was ever forthcoming, therefore they must be hiding something. 

You can’t generally use without prejudice communications in legal proceedings

You can’t use anything which is discussed in without prejudice discussions, 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 exchanges can be used in legal proceedings.  These circumstances are:

[1] If without prejudice 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 without prejudice 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.

Generally in employment proceedings it is very rare for without prejudice conversations or correspondence to be shown to a judge, and usually it is only in discrimination or whistleblowing cases when evidence of wrongdoing has arisen in correspondence.


Next steps

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