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William Laughton
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What Does Without Prejudice Mean? A Guide for Employees

When an employee has a dispute at work, their employer may offer a without prejudice conversation to discuss a settlement agreement. In this practical guide, we explore the meaning of without prejudice and answer questions associated with it. 

What Does Without Prejudice Mean? 

Essentially, ‘without prejudice’ limits the visibility of correspondence, keeping it confidential between the concerned parties. Such correspondence could include letters, emails or telephone calls. Should any communication be labelled this way, its contents will be inadmissible in court. 

When is This Term Normally Used? 

Usually, the term would be used in correspondence between an employer and their employee during an ongoing dispute. If the employer wants to negotiate a settlement, they may label their correspondence as such. 

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. 

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. 

What Should I Do if I Have Received a Without Prejudice Offer to Settle? 

Several steps must be taken when an employee receives said offer to settle. Firstly, and it goes without saying that, they should deliberate the offer carefully, researching whether it’s objectively fair.  

After better understanding the offer, it’s recommended they then seek advice from a specialist employment lawyer. This is because employment lawyers have vast experience dealing with similar cases and could advise the employee on their possible next steps. Plus, employees cannot sign a settlement agreement without first obtaining independent legal advice, so this could satisfy that requirement, too. 

Following this, the employee must respond to the offer by the established deadline. If they aren’t happy with the proposed settlement, they should put forward a counteroffer. 

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. 

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. 

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. 

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. 

What Does Without Prejudice and Subject to Contract Mean? 

If this phrase is used, eligible correspondence will be inadmissible in court and the offer, even if accepted, will be subject to the parties signing a contract.  

Often, it’s recommended that when accepting an offer, an employee informs their employer they will do so, subject to contract. This tells the employer of the employee’s intention but gives them time to review the terms of the offer. 

What Does Without Prejudice Save as to Costs Mean? 

Here, eligible correspondence would be inadmissible in court unless it was being used during an application for costs. This is where the tribunal could make a ‘costs order’ concerning legal fees and expenses. 

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. 

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. 

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: 

About Author

William Laughton

William is a senior copywriter at Redmans Solicitors. Having studied law, he went on to pursue a career in legal writing. He writes about all areas of the employment law sector, including employment tribunals, well-being and human resources. Outside of work, William loves all things sports and fitness.

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