“Without prejudice” conversations and communications are used to encourage employers and employees to settle disputes before, or during, legal action.
What Does Without Prejudice Mean?
Employees may be unfamiliar with the term “without prejudice” and be unsure of what it means. Effectively, it’s a legal tool that enables genuine settlement negotiations to occur whilst restricting who has access to the correspondence.
The communication will be inadmissible should negotiations break down and the case go to court. This means neither party can use it as evidence in their case. However, not all communication will be deemed as “without prejudice”.
What Makes a Communication Without Prejudice?
When discussing the “without prejudice” meaning, we outlined that only particular communication qualifies for this protection. Below, we examine the eligibility criteria that must be satisfied to qualify – these are, as follows:
a. Is There an Existing Dispute?
Firstly, there must have been an existing dispute between the employee and employer when the correspondence was sent. This could have included the employee being threatened with disciplinary procedures or raising a grievance.
b. Has a Settlement Offer Been Made?
Secondly, a settlement offer must have been made. It may be that an employer has offered an employee a settlement figure to drop claims made against them. Alternatively, the offer could contain non-economic benefits. Regardless of the proposal, correspondence will only be deemed “without prejudice” if an offer to settle has been made.
c. Was There a Genuine Attempt Made to Settle the Dispute?
Finally, the offer must have been genuine. Without making a genuine offer of settlement, “without prejudice” correspondence cannot exist. For example, if an employer offers an unreasonable settlement figure, like £1, it could be ruled that a genuine offer hasn’t been made. In such circumstances, the communication wouldn’t come under this category.
What Does Without Prejudice Save as to Costs Mean?
Correspondence labelled “without prejudice save as to costs” is treated the same as those labelled “without prejudice” during the case. This means it cannot be used as evidence during the hearing. However, once a judgment has been made, the judge can look at the correspondence before awarding costs.
What Does Without Prejudice and Subject to Contract Mean?
Correspondence labelled “without prejudice and subject to contract” means the settlement offer made won’t be immediately binding. Here, the offer to settle will be subject to written terms that need to be agreed and signed. However, eligible communication containing this label will gain the same “without prejudice” protection.
What is a Without Prejudice Conversation?
Similar to written correspondence, a “without prejudice” conversation prevents the contents of the discussion from being admissible in court. To have such discussions, one must state they want a “without prejudice” conversation before settlement negotiations occur. Then, talks concerning the terms of the offer will take place before a response is given immediately or after deliberation.
What is Without Prejudice Correspondence?
“Without prejudice” correspondence encompasses various communications employees could exchange with their employer, which can’t be used as evidence in court. In the next section, we provide an example of such correspondence.
What Does Without Prejudice Mean on a Letter?
“Without prejudice” correspondence could include a letter, which gains protection if it contains a genuine offer to settle an existing dispute. In such circumstances, the letter would be inadmissible in court.
However, a letter isn’t the only form of correspondence that could be exchanged. A “without prejudice” correspondence can be an email, meeting, or conversation.
What is a Without Prejudice Meeting?
Like a conversation, a “without prejudice” meeting occurs when a party in the dispute wants to discuss a settlement. One may invite the other to such a meeting or ask that it become one when they meet.
It involves discussing a settlement offer that genuinely attempts to resolve the existing dispute. Usually, this will be accompanied by a “without prejudice” letter outlining the terms of the settlement offer.
When Should You Use “Without Prejudice”?
An employee or employer should use “without prejudice” when they want to discuss a settlement offer to resolve a potential dispute or an existing dispute. Such correspondence may encourage the parties to discuss a settlement freely. This is because it removes concerns about the negotiations being used as evidence in court if the settlement negotiations break down.
How Should You Have a Without Prejudice Conversation With Your Employer?
Regardless of who initiates the “without prejudice” conversation, how they should be conducted remains the same. Therefore, if an employee wants to have such discussions with their employer, they should state that they want to have a “without prejudice discussion” before conducting negotiations.
Can an Employee Make a Without Prejudice Offer, or Should the Employer Always Make the Offer?
Although it’s more common for employers to make “without prejudice” offers, employees can make them too, providing they satisfy the eligibility criteria when making such an offer.
How Will an Employer Normally Make a Without Prejudice Offer?
Generally, employers will correspond (orally or in writing), informing an employee that they’re making a “without prejudice” offer. This will contain terms which, among other things, include:
- Whether the employee is being dismissed;
- When the termination date will be if the employee is being dismissed
- If the employee will be required to work their notice;
- The settlement package they’re offering;
- The form of reference the employer is willing to provide
What Should you do if you Receive Such an Offer?
If an employee receives such an offer, it’s recommended they:
- Consider the offer carefully;
- Determine if the offer is fair;
- Take expert advice from employment lawyers;
- Respond by the deadline; and
- Make a counter-offer if unhappy with the terms
Is This Different From a “Protected Conversation”?
The terms refer to legal tools that are essentially the same. In both circumstances, employers and employees can have an “off-the-record” chat. Also, in either instance, a settlement offer should be discussed. The main difference between them is that “protected conversations” can occur without there being an existing dispute.
What Should You Do if You Think a Communication is Not Without Prejudice?
Employees who believe correspondence isn’t “without prejudice” should proceed cautiously. This is because the communication could be used as evidence in court if negotiations break down. Therefore, seeking legal advice before taking any further steps in such circumstances is recommended.
Employment Tribunal Cases
- Billingham v EMKA (UK) Limited 1303258/2023 – in this case the Employment Tribunal held that without prejudice conversations between the employee and the employer could be admissible in the Employment Tribunal as evidence and that the Claimant had been dismissed from his position (Employment Tribunal decision)
- Hammond v Intumescent Systems Ltd 2301224/2023 – in this case, the Employment Tribunal held that the parties simply discussing settlement agreement terms on a without prejudice basis did not mean that there had been an agreement to terms, nor a mutual termination of employment. The Employment Tribunal therefore held that the Claimant’s dismissal had been unfair (Employment Tribunal decision)
Contact us today if you have any questions or need legal advice concerning the above-discussed. Our team at Redmans Solicitors are expert employment law specialists and can advise you on how to proceed.
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