What does 'Without Prejudice' mean?
In general, communications between parties expressed to be 'without prejudice' are an attempt to resolve a dispute, or to reach an out of court settlement, without the content becoming admissible in any subsequent proceedings.
The statement is based on a clear public policy that requires the parties have the freedom to try to negotiate and to settle their dispute out of court, without worrying that any admissions will be referred to at the subsequent hearing.
The without prejudice principle applies equally to employment disputes and to claims in the Employment Tribunal.
It's worth remembering that correspondence does not have to carry the label 'without prejudice' for the principle to apply if the content is for the purpose of negotiating a settlement of a dispute.
Whilst the Employment Tribunal rules state that the tribunal shall seek to avoid formality in proceedings, there mere fact that discussions are 'without prejudice' does not make everything this is said inadmissible at a hearing. An employer does not have carte blanche to say to an employee anything they want to on a 'without prejudice' basis in the course of the negotiations.
Employers should also avoid any form of discrimination in 'without prejudice' negotiations as an Employment Tribunal may well decide that the evidence can be referred to at a subsequent hearing.
Employers may also have difficulties in relying upon 'without prejudice' negotiations if they use the unequal relationship to give themselves the upper hand over a vulnerable employee. So, for example, if a meeting is underway and the employer all of a sudden states that the meeting is 'without prejudice' and does not give the employee an opportunity to genuinely acquiesce or to agree, it would run the risk that what was said would be admissible in the Employment Tribunal.
It can be difficult for an employer or an employee to decide when to start 'without prejudice' negotiations. It can be even trickier to decide what to offer, or, how to turn down a proposal - without stalling the negotiation process.
The employment team at stevensdrake can steer you through the negotiations, help you to avoid making mistakes and advise you how to frame your settlement proposals.
Published - March 2010
This article is provided for general information only. Please do not make any decision on the basis of this article alone without taking specific advice from us. stevensdrake will only be responsible for the advice we give which is specific to you.
