“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.

Why Would my Employer want to have a Without Prejudice Discussion with me? 

Supposing an employer has an existing dispute with their employee, they may want to discuss a settlement. This is because settling the matter could avoid costly, lengthy tribunal hearings.  

Should negotiations break down, the employee could use their correspondence as evidence during proceedings. Yet, if said correspondence is without prejudice, the employee wouldn’t be able to do so. 

How Should a Without Prejudice Letter Be Drafted? 

For correspondence to garner without prejudice protection, it must satisfy specific eligibility criteria. Firstly, there must have been an existing dispute between the employer and employee at the time of the correspondence. This could include the employer highlighting performance issues or the employee submitting a grievance concerning harassment. 

Next, a settlement offer must have been made. This may include the employer offering a sum of money in exchange for the employee dropping their employment tribunal claims. 

Finally, the offer to settle must have been a genuine attempt to resolve the matter. Therefore, simply making an offer doesn’t automatically entitle communication to protection. Instead, the offer must be that which would be considered reasonable to settle the dispute. 

Providing the above criteria are satisfied, the actual contents of the letter should include: 

1. An introduction – If the employee is making an offer, their introduction should outline this. If they are responding to an offer, they should introduce their thoughts on receiving it. 
2. A discussion of the facts – Should the employee suggest settling, they should outline their version of events. But if they’re responding to one, they should highlight errors with their employer’s recollection and specify their own. 
3. A remedy – If the employee is presenting a settlement offer, they should outline the remedies they deem appropriate to settle. If they’re responding to their employer’s letter, they should either specify their desire to accept or propose their remedies. 

Can I put a Without Prejudice Offer to my Employer? 

Both an employer and their employee can make such an offer. If an employee wants to do so, they should make this clear. This can either be done by expressing their desire to have a without prejudice conversation or by labelling written correspondence the same and ‘subject to contract’. 

The employee should then outline the terms they want to settle on and await their employer’s response. A response may be given during the correspondence; however, they will more likely go away to deliberate first. 

Is it Better to Make an Offer in a Without Prejudice Letter, Email, or a Telephone Call? 

As mentioned, without prejudice conversations can occur orally, in writing, or via email, provided they satisfy the above eligibility criteria. That being said, making an offer in writing or via email is recommended. This is because these methods of correspondence are easier to evidence and provide more time to construct and review them. 

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.

How Should I Prepare for and Deal with a Without Prejudice Meeting? 

Employees should be prepared if asked to attend such a meeting to ensure they don’t compromise their position. It’s essential they first try to understand what it could be about and consider the questions they might be asked. Since there must be an ongoing dispute, the employee will likely have a good idea about the meeting’s topic. 

Moreover, when attending the meeting, the employee should aim only to say what’s necessary. This helps prevent the employee from saying something the employer may try to use against them during negotiations. 

Finally, should the employer make an offer during the meeting, the employee shouldn’t accept it immediately. Regardless of how good it sounds; they should remain calm and go away to review the offer carefully. But before doing so, it’s wise to seek clarification about the offer. Ask questions about its specifics and request a detailed written summary. 

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.

How Should I Undertake a Without Prejudice Negotiation? 

Depending on the circumstances, several tactics could be deployed when negotiating a settlement agreement. Employees who have a good relationship with their employer may try to establish goodwill. This could include highlighting that they’ve been a hard-working employee and would leave quietly should they receive a favourable settlement. 

Should this not be possible, the employee might opt for a more assertive approach. They could outline their potential claims and associated value and request an offer reflective of these facts. Crucially, the employee needs to show they’re willing to negotiate but won’t be a pushover. 

Instructing a solicitor before negotiations is recommended if an employee hasn’t already. They have plenty of experience and could help employees navigate the negotiation process. 

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.

Without Prejudice or Protected Conversation? Which Should I use? 

Generally speaking, both refer to the principle of enabling free discussion without a correspondence’s contents being admissible in court. However, there are some differences between the two. Unlike a without prejudice discussion, a protected conversation can occur without an ongoing 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.

How Do I Know if I Have a Good Deal After I Have Undertaken the Negotiations? 

What determines a ‘good deal’ following negotiations will depend on the facts of the case. Since each case differs, the terms that qualify as a good deal will vary.  

Therefore, if an employee is unsure what would be a good deal in their circumstances, they should seek legal advice. That’s because employment law solicitors deal with settlement negotiations frequently, meaning they could assess the case and determine its value. Once they’ve done this, they could advise what constitutes a good deal in the employee’s case. 

What Should I Do if There is No Agreement Between Myself and my Employer? 

Supposing a settlement agreement cannot be reached following without prejudice conversations, an employee may want to consider employment tribunal proceedings. Yet before embarking on such proceedings, the employee would need to undertake ACAS early conciliation. 

What is a Without Prejudice Dismissal? 

A without prejudice dismissal usually occurs when an employee agrees to their employment being terminated in exchange for a sum. The employer would make payment and potentially provide non-financial benefits, whilst the employee would relinquish their right to claim compensation. 

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)

How Can a Legal Adviser Help Me Negotiate a Deal with my Employer? 

For many employees, it will be their first time negotiating a settlement offer. However, specialist employment lawyers deal with similar circumstances regularly. As such, they can assess an employee’s situation and advise on how to proceed, helping to obtain the optimal settlement. 

Here at Settlement Agreement Lawyers, we’ve helped numerous employees with employment law issues and are experienced with settlement agreement negotiations. We hope this guide has outlined the without prejudice meaning and answered your questions.  

If you have any further questions or want help with your case, get in touch with us today. To begin, simply: 

• Call us on 0800 464 7254 
• Request a callback by filling in our online form