“Without prejudice” communications are normally sent from an employer to an employee (or vice versa) where there is a dispute, or potential dispute, between the employer & the employee and one party wishes to make an offer to settle that dispute.

You would normally use a “without prejudice” offer where you want to make a settlement offer. For example, if you have been discriminated against then you may wish to send a without prejudice offer to your employer to try and settle your potential discrimination claim.

The “without prejudice” rule is a legal way of ensuring that the parties making offers to each other can limit who can else see those offers. For example, if you make a without prejudice offer to your employer then neither party can normally show that offer to a court or tribunal, unless specific exceptions apply (e.g. there wasn’t a genuine offer to settle or one (or both) of the parties has reserved the right to rely on the correspondence if they want to make an application for their costs).

A “without prejudice” communication is different to a protected conversation as different rules apply to a without prejudice offer than an offer put forward in a protected conversation; however, without prejudice communications and protected conversations are similar enough that the terms are often (although incorrectly) used interchangeably.