Without prejudice communications

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

In this guide, we’ll explain what the term ‘without prejudice’ means, and when and how to use it. We’ll also share some of the tips we’ve built up over the years when writing without prejudice communications to employers.

So when you’re drafting your own communication to your employer, you’ll have a good chance of getting what you want: a settlement agreement with a fair sum of money rather than two years of expensive litigation in the employment tribunal.

If you would like to see some examples of real-life without prejudice letters and emails, have a look in the legal letter templates section of this site, where you can copy and use our free without prejudice letter templates and examples.

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.

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 on 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 prospect 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 could 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.

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.

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

What are the requirements for using 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 are the different types of without prejudice communication?

There are essentially two different kinds of without prejudice communication: written and verbal, as outlined below:  

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 firstly 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.

For more tips on writing without prejudice communications, see our Ten tips on how to write without prejudice letters and emails

How should you present the facts in your without prejudice communication?

The best way to set out the facts is to keep them simple and to set them out in a neutral way. Those facts, if they could form the basis of a claim, will speak for themselves.

Remember, you are dealing with an employer, not another employee, and your employer will have an HR department and lawyers or advisers who specialize in employment law.

Therefore, once your letter gets passed to these individuals for their views, they will understand that you may have a claim against the company or that you present a risk to the business. They will know what claims you may have and what they are worth.  There is usually no need to say that Mr X has it in for you and that’s why he failed to score your performance procedure correctly, or that Mrs Y has breached your contract and that you have an unfair dismissal claim.

This is, in our view, the way to set out most without prejudice letters which would fall under the head of ordinary unfair dismissal (eg redundancy, performance, conduct, etc), breaches of contract, other contractual claims such as bonuses, holiday pay etc. By setting the facts out in a neutral way, you will appear professional and easy to deal with. The company will appreciate this and is much more likely to want to deal with you.

How should you structure your without prejudice communication?

Draft your letter/email (referred to simply as ‘letter’ from here) in three distinct parts: the introduction; facts of the dispute; the resolution, as set out below. This is the anatomy of any good without prejudice letter if it’s to have a chance of leading to a successful negotiation.

1. The introduction

This should be the opening of the letter in which you introduce yourself, your role, what you do for the company, how hard you have worked and how long for. You should mention any commendations or accolades you are received from the company and any successes you have personally had or contributed to in the last year or two.

Say how much you have enjoyed working for the company and that you value its work. Every company wants to know how much you enjoyed working for it and it is much more likely to deal with you if you are respectful and come to negotiations out of a sense of genuine regret as opposed to showing malicious intent.

This sets the scene for you to tell the company what it has done wrong. It is the classic contrast between the good and the bad and shows the company how much this means to you and how hard it has been for you to approach it. This creates an element of guilt for the company, and of shock that one of its employees can be so unhappy.

2. The facts of the dispute

Now is the time to tell your employer why you are unhappy. Set out the key facts that you think could lead to a claim, but don’t ever mention a claim, merely that these things have happened to you and that you feel very unhappy and hurt by them.

Don’t exaggerate: stick to the most important facts and leave out the trivial matters. Concentrate on recent events and ignore events from years ago unless they are connected to recent events and could lead to a discrimination claim.

Set out the events in date order and make references to evidence that you have collected. If you feel it appropriate at this stage, you can send a copy of the key items of evidence with your without prejudice letter. If you are going to do this, then you should use the format discussed in the website section on Evidence and reference the evidence by the tabs in the evidence file.

Don’t make this section too long: remember, you are trying to capture and hold your employer’s attention and you are unlikely to do this by writing a twenty-page letter making dozens of allegations. Ideally, your entire letter should fit on no more than three sides of A4, and that includes the headings and your signature.

It’s a real art, as well as a science, to write a concise without prejudice letter while still maintaining the full impact of all the contents.   If your employer receives this kind of masterpiece, they will probably think you’ve been helped by a good lawyer and so will be more inclined to offer you a deal.

3. The settlement offer

The offer to settle is the key part of your letter. You have presented your employer with a problem (the facts of the dispute), now you need to present it with a solution: a settlement agreement, termination, and payment.

In this section, if you want to leave your job then you need to say so and when you want to leave. Be humble about it, say you regret this decision very much, but you see no other option. Don’t mention an employment tribunal as this can often kill goodwill stone dead and prevent an agreement.

The best way to set out your offer to settle is as follows:

  • Proposed termination date.
  • State what you want, namely:
  • Any other non-financial terms.
  • Your proposal for an ex gratia payment (set out in gross months’ salary), the first £30,000 of which will be tax free (see separate guide on ex gratia payments).

 

The issues under the first three bullet points above are easily negotiable and most employers will agree to them if your letter is well-drafted.

Therefore, for the purposes of presentation, you should set out the easy points first. This gets your employer, or the reader of the letter, used to saying “yes” in their head, so by the time they get to the final point, they are more receptive to your proposals.

The last line of your letter before signing off should always be ‘I look forward to hearing from you’

 

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Does the appearance of your without prejudice letter matter?

It may sound obvious, but if you’re not used to writing legal letters, it is very important for your without prejudice letter to look professional.  It should be typed on a computer and in the correct letter format. If you are unsure of the correct format for a formal letter, use one of the examples from our website.

If you intend to send the letter electronically, print off a copy, sign it, scan it and then send it to your employer. Alternatively, use an electronic signature and convert the document to a PDF file if you can. (Avoid  sending your letter in an editable Word format.)

What type of language and grammar should you use?

The readers of your without prejudice letter will be professional people, so if you want to be taken seriously, use the correct terms, write in complete sentences, use paragraphs, bullet-points and headings, and above all make sure your use of language is correct in terms of grammar and meaning. Use a spell-checker and don’t ignore those red and blue lines under words on your screen, they usually mean that something is wrong.

 

 

 

 

How much should you ask for in a settlement agreement?

How much you should ask for depends on the case you have, but remember, you are asking for a quick deal, so you should accept less than you could hope to achieve at an employment tribunal.

This way, you won’t have to pay for legal representation, incur the very real risk of losing your case, and you’ll get the tax advantages of settling under a settlement agreement:  ‘A bird in the hand is worth two in the bush’ as the saying goes.

In general terms, most negotiations settle for between notice pay plus one month’s gross salary and notice pay plus four months’ gross salary. If you have an excellent case, or represent a risk to the business in terms of clients, then you should be aiming higher, maybe notice pay plus six months.

So, if you have an idea of the amount you can realistically settle for, you need to pitch a little higher when making an opening offer: a little higher, but not ridiculously so.

If you can realistically aim for three months’ salary plus notice, and you propose twelve months’ salary, then your employer is not going to take you seriously. Ironically, if you plan to use a lawyer, it can be a good tactic to state a ridiculous amount straight away, then to instruct a lawyer to negotiate on a sensible basis.

Normally though, you should really be asking for up to double what you can realistically achieve, depending on the strength of your case. So, if you can expect three months’ gross salary plus notice, then you could try pitching for six months’ gross salary plus notice in your initial offer.

How to write without prejudice letters in very serious cases?

In the most serious cases of discrimination or whistleblowing and contrary to the general advice given above, it’s usually best to set out the allegations themselves. You can, however, do this in such a manner that does not antagonise your employer too much.

Set out the allegations, the dates on which they occurred, the witnesses to them, reference any evidence that you may have to support your case (see website section on Evidence) and then explain in a neutral manner why you consider the allegations to be – for example – discrimination.

What does ‘without prejudice save as to costs’ mean?

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 help to compose a without prejudice letter, take a look at our without prejudice letter templates and examples – as mentioned earlier – 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 do get in touch with us at Monaco Solicitors, where we will be happy to discuss your options.

 

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