Think before you speak - is it really ‘off the record’? Over the last few years, there have been a number of cases that have wrestled with the question of when discussions will be held to be ‘without prejudice’ and when they will not.  With this in mind, now is a good time to reflect on this difficult area of law. What does ‘Without Prejudice’ mean? Where two parties are seeking to resolve a dispute and enter into discussions in a genuine attempt to settle the matter, those discussions will generally be held to be ‘without prejudice’.  This means that the content of the negotiations cannot later be drawn to the attention of a court or tribunal.  

The ‘without prejudice’ rule is clearly important in reassuring people that they can freely negotiate the potential settlement of  a dispute, without worrying that any admissions that they might make will be used against them at a later date. ‘Without prejudice’ and employment disputes The ‘without prejudice’ rule applies to employment disputes and to claims made in the Employment Tribunal in much the same way as it applies to other forms of dispute.  But in the employment sphere, before making a settlement offer, it is important to consider whether it will be protected by the ‘without prejudice’ rule at all.  For the rule to apply, there must be a pre-existing dispute that the parties are seeking to settle.  

So employers have to be particularly careful when making offers to existing employees, where no legal proceeding have yet been commenced. Even if the ‘without prejudice’ rule generally applies to the discussions, this does not give an employer ‘carte blanche’ to say anything they want in the course of the negotiations.  For example, where a party is found to be using the ‘without prejudice’ rule as a cloak for discriminatory behaviour or other ‘unambiguous impropriety’, then an Employment Tribunal may decide that evidence of the discussions can be referred to at a subsequent hearing. Employers also need to tread carefully as a result of the inherently unequal relationship that exists between them and their employees.   

If an employee can show that the employer has used ‘undue influence’, bouncing the employee into negotiations, without the chance to genuinely reflect or agree to what is proposed, then there is a risk that what was said would be admissible at an Employment Tribunal hearing. Taking advice at the right time Clearly, it can be very difficult to work out whether discussions are ‘without prejudice’  or not.  It can be even trickier to decide what offers to make or accept and how to reject a proposal without stalling the negotiation process.  If you need advice on these issues, then the employment team here at stevensdrake can steer you through the negotiations.  Contact us now and find out how we can help. James Willis, Head of EmploymentThis 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.