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

‘Without prejudice’ communications are likely to feature in any employment negotiation, so it is vital to understand what they mean and how to use the protections that they allow in negotiations.

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

It also outlines the difference between without prejudice and other ‘open’ forms of communications.

The guide is meant to be read after you’ve had a look at our main page which gives an overview of without prejudice communications, the ‘rules’ that apply when it’s being used and how to write effective without prejudice letters and emails.

 

What’s the meaning of ‘without prejudice’?

Without prejudice is a legal tool which limits who can have access to the contents of a ‘without prejudice’ written or verbal communication. 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 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 and confidential between yourselves (and your legal representative if you have one).

Why do people in a dispute need without prejudice?

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 number of disputes which end 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 the without prejudice 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 for without prejudice protection. 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. (See our guide on how to write without prejudice letters.)

Want help writing a Without Prejudice letter?

 

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 conversation 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 without prejudice meetings and conversations.)

[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 without prejudice letter templates and examples for how to present without prejudice correspondence and the kinds of dispute that you would use the protection of without prejudice for.

Without prejudice negotiations opened by the employer

Generally, if your employer wishes to open negotiations about terminating 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. 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 a without prejudice letter setting out the reasons for wishing to negotiate and the terms on which you are willing to settle.

 

 

 

Need advice on your employment negotiations?

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

Open communications:

This refers to any email, letter, phone call or meeting which doesn’t have without prejudice protection. So for example, you might write a letter to your employer resigning from your job, or raising a grievance.  Or perhaps during an employment tribunal case, you might request 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 cannot 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.

It’s very rare for without prejudice conversations or correspondence to be shown to a judge in employment proceedings and it’s usually only 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 letter templates listed below.

If you are having problems with your employer and would like legal help to resolve them, then do contact us at Monaco Solicitors.

We are employment law specialists, who only work on employment legal cases and who only represent employees (not employers).  We therefore really do understand what you are going through if your employer is treating you badly and we can usually help you to find a way forward.

 

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