Without prejudice communications

'Without prejudice' communications are a key element in negotiating a settlement agreement. They can be in writing (letters or emails) or be verbal (meetings or over the phone).

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    In this guide, we’ll explain what the term ‘without prejudice’ means in practice, and the different forms it can take when you’re trying to negotiate terms in a dispute with your employer. We’ll also share with you some of the skills and short cuts we’ve acquired over the years when writing without prejudice letters to employers.

    So when you’re drafting your own without prejudice letter to your employer, you’ll have a good chance of getting a speedy settlement agreement with a fair sum of money to compensate you for being badly treated by your employer. This, in our view, is preferable to months or even years of litigation in the employment tribunal without any guarantee of winning your case.

    If you would like to see some without prejudice letter examples, you’ll find plenty in the legal letter templates section of this site. They are adapted from ‘real life’ cases and you can copy and use them freely as you wish.

    See also our other guides listed at the end on different aspects of without prejudice communications and particularly how and when to use without prejudice in negotiations and tips on how to write without prejudice letters and emails

    What does ‘without prejudice’ mean?

    Without prejudice is a legal term that means ‘without detriment to any right or claim’.  In non-legal speak, this means that whatever you or your employer says or writes in a without prejudice basis cannot later be used by your employer to your disadvantage, should you decide to make a claim in an employment tribunal against your employer.

    Without prejudice is also sometimes called ‘without prejudice protection’, or ‘without prejudice privilege’.

    What are the benefits of without prejudice communications?

    When both sides in a dispute (you and your employer) begin settlement negotiations on a without prejudice basis, you both benefit from a degree of protection and confidentiality about the nature and content of those negotiations. 

    Those without prejudice negotiations are confidential between the parties and – if you end up having to take your claim to an employment tribunal – they can’t be divulged to an employment tribunal judge.

    Generally speaking, without prejudice would be used in negotiations for compensation where there was a possibility of not reaching a settlement agreement and of having to litigate (ie go to an employment tribunal).

    Examples of the kinds of issue where without prejudice rules would be beneficial include some details of the allegations you are making against your employer, or negotiations about the financial and non-financial forms of compensation you want in any settlement agreement.

    Should you use without prejudice or open communications?

    If you send or participate in a communication that does not have without prejudice protection, then it’s called an ‘open’ communication, which broadly means that it’s not confidential between you and your employer.

    Open communications are those that can be freely disclosed and are not protected from being presented as evidence in a tribunal or other court. For instance, if you wrote a formal grievance letter to your employer detailing allegations of unfair treatment or discrimination, it would be considered open. 

    These communications can be referred to by you or by your employer during legal proceedings in an employment tribunal, to support your claims or their defences.

    There are drawbacks and advantages associated with using open communications which are discussed in more detail in our guide on when and how to use without prejudice.

     

    When would you use without prejudice?

    Under the rules which exist for using without prejudice and in order for without prejudice protection to apply, the following requirements must be met: 

    • there must be a genuine dispute between the parties,
    • written correspondence must be clearly marked as being without prejudice,
    • a conversation must be declared from the outset to be on a without prejudice basis, and
    • the correspondence or discussions which take place under without prejudice protection must be a genuine attempt to resolve the dispute.

    You will gather that without prejudice should be used with care and should not be used in every communication you may have with your employer about something you aren’t happy with at work. See below for more.

     

    What kinds of without prejudice communication are there?

    There are essentially two different kinds of without prejudice communication: written and verbal. 

    Written without prejudice communications

    Written without prejudice communications usually take the form of a letter or an email, providing that the requirements (see above) for using without prejudice are met. Within those confines, however, there is no hard and fast rule about whether you should use a letter or email format. 

    However, if it’s a communication that is critical to your employment case, or if the allegations you are going to make are very serious (see below), a conventional letter might be preferable, as there can be problems with authenticating email content and delivery status.  Otherwise, however: 

    • Sending a without prejudice email is acceptable, or
    • You could create a without prejudice letter on your laptop/mobile etc (using a format that can’t be edited by the recipient), write a brief covering email and send the letter electronically as an email attachment, or
    • You could print your without prejudice letter and send it as a paper copy using conventional post, using some form of recorded delivery and ensuring that you keep both a copy of the letter and of the delivery confirmation.

    Verbal without prejudice communications

    Verbal without prejudice communications can take place at meetings on a one-to-one basis or with more than two people present (in person or electronically).  Without prejudice conversations can also take place over the telephone.

    However, if you’re thinking about having, or are asked to have, a without prejudice face-to-face meeting or telephone conversation, we strongly recommend that you first obtain the advice of an experienced lawyer/negotiator.

    This is because, if you are not experienced in negotiating in such circumstances, or are not adequately prepared, you could find yourself in a tricky situation, and end up agreeing to things that you later find are not in your best interests. 

    For further information and guidance on this topic, have a look at our guide on without prejudice meetings and conversations .

     

    Tips to consider before making without prejudice allegations

    1. In your first without prejudice letter/email to your employer,  be selective and keep some issues in reserve for the final negotiating stages.
    2. Try not to overemphasise all the ways you think they’ve mistreated you.  Instead, stop and think if there is a way in which you can more subtly mention their behaviour.
    3. That’s not to say you shouldn’t set out the facts that you are relying upon to negotiate. You should, but you can do this whilst still not making damaging allegations against named individuals, especially individuals who have the power to offer you a settlement agreement.
    4. The more you make allegations and accusations in a without prejudice letter, the more your employer will defend those allegations: it’s a natural thing to defend yourself when you’re accused.  They are likely to investigate further and this will generate still more letters.
    5. The parties may then become entrenched, with the likelihood of an agreement disappearing over the horizon.  All this, when what you really need is a quick, painless deal which leaves you financially better off, and able to look for another job free from immediate financial pressures.

     

    How to present the facts in your without prejudice letter or email

    The best way to set out the facts in your without prejudice letter or email is to:

    • Keep them simple: Review what you’ve written and make sure it makes sense to someone who doesn’t know anything about your situation.
    • Keep them brief : Busy professionals are likely to take more notice of a page or two of relevant facts rather than four pages of argument where they have to spend time trying to tease out the points you are trying to make.
    • Set them out in a neutral way: The facts shouldn’t be unduly emotional or bias. Your employer will appreciate this as it will make you appear more professional and easier to deal with.
    • Keep them accurate: Don’t make claims or allegations that you haven’t got strong evidence to substantiate.

    Remember, you are dealing with your employer, not another employee. Your employer will have access to HR specialists and specialist employment law lawyers/advisers. They will be able quickly to assess what claims you may actually have and their potential financial value.

    Writing your without prejudice letter

    See our 10 tips on how to write without prejudice letters and emails for detailed practical guidance on how to structure your letter/email and guidance about what kind of contents should go into each section.

     

    How much to ask for in your without prejudice letter?

    When deciding how much you should ask for in your without prejudice letter, it’s important to consider the detail of your individual situation.

    Aim for a quick settlement

    We suggest you aim for a quick settlement if you can.  That does mean being prepared to accept a lower amount than that you might win in an employment tribunal. However, this approach saves you from the worry of legal fees, the risk of losing, and allows you to benefit from the tax perks of a settlement agreement.

    What’s a typical settlement amount?

    Typically, settlements range from your notice period pay plus one month’s gross pay, to your notice period pay plus four months’ gross pay.

    However, if your case is particularly strong, or if you pose a significant risk to your employer’s business (for example, through potential loss of customers/clients) you might aim for a higher target, such as your notice pay plus six months’ gross pay.

    How to pitch your initial settlement ‘offer’

    When stating your initial offer, aim above the amount you hope to settle for, but keep it reasonable so as to maintain credibility with your employer For instance, if you’re aiming for a settlement of three months’ salary plus notice pay, suggesting a settlement of twelve months’ salary might seem unrealistic and could undermine your position with your employer.

    On the other hand, if you’re considering hiring a lawyer, starting with a high demand could work as a strategy, allowing the lawyer to negotiate down to a more reasonable figure later.

    In most cases, you should ask for up to twice what you believe is a realistic settlement, based on the strength of your case.

    This means that, if you think you could realistically get three months’ gross salary plus notice pay, you might start by asking for six months’ gross salary plus notice pay.  This approach sets a good starting point for negotiations, and gives you some scope to adjust when you’re working towards a fair settlement.

    ‘Without prejudice save as to costs’ explained

    Finally, it’s worth briefly mentioning here the term ‘without prejudice save as to costs’.  It’s used in the headings of some documents just in case you won’t be able to settle informally with your employer and have to take your claim to an employment tribunal.

    In employment tribunals, costs are usually borne equally by the parties to the dispute, but following the conclusion of some cases, the judge may decide that one party should pay a greater share of the costs than another.

    For example, you might be required to pay a greater share of the costs if you had brought a claim to the tribunal and that claim had been judged as not having any reasonable prospect of success.

    Or your employer might be asked to pay more of the costs than you if they had acted unreasonably in refusing to settle prior to the tribunal hearing.

    If there is an issue about who pays costs, then correspondence which is marked ‘without prejudice save as to costs’ can be shown to a judge to help their decision.

    For example, correspondence that demonstrated that you had acted reasonably in trying to reach a fair financial settlement with your employer out of court (ie prior to any tribunal hearing).

    There are very few exceptions to the general without prejudice rule which says that communications marked without prejudice can’t be seen by a judge: one of them is without prejudice save as to costs.

    See our guide on without prejudice save as to costs for further details.

     

    Next steps

    See our Helpful Guides below if you’d like to understand more about different aspects of without prejudice communications.

    If you would like further help to compose a without prejudice letter, take a look at our without prejudice letter templates and examples which you can adapt and use as you wish to create your own letter.

    You could also try our Virtual Lawyer letter-building tool, which helps you to create your own without prejudice letters addressed to your employer and seeking compensation for their poor treatment of you.

    Or if you would like advice and/or help from one of our experienced specialist employment solicitors, then contact us at Monaco Solicitors, where we will be happy to discuss your options

    Via our website 

    By phone: 020 7717 5259

    By email: communications@monacosolicitors.co.uk