Without Prejudice Negotiations

"Without prejudice" allows confidential settlement discussions that can't be used as evidence if negotiations fail.

What Is Without Prejudice?

The Principle

A common law rule that protects:

• Settlement negotiations
• Offers and counter-offers
• Admissions made during negotiations
• Communications attempting to settle

From being used as evidence in legal proceedings.

Why It Exists

To encourage settlement:

• Parties can speak freely
• Can make admissions without risk
• Can explore options
• Without fear of prejudice if talks fail

When Does It Apply?

Requirements

For without prejudice protection:

1. Existing dispute - there must be a dispute
2. Genuine attempt to settle - not just labelling
3. Both parties understand - mutual knowledge
4. Settlement-related content - about resolving dispute

What Counts as a Dispute?

Situation	Dispute Exists?
Employee has raised grievance	Yes
Tribunal claim filed	Yes
Employee threatened legal action	Yes
Performance issues being managed	Maybe
No complaint made	No (use protected conversation)

Without Prejudice vs Protected Conversation

Key Differences

Aspect	Without Prejudice	Protected Conversation
Dispute needed	Yes	No
Legal basis	Common law	Statute (s.111A ERA)
What claims protected	All claims	Only ordinary unfair dismissal
When to use	After dispute arises	Before or after

Overlap

Both can apply together:

• If dispute exists, WP applies
• Protected conversation adds statutory protection
• But protected conversation limited to unfair dismissal

How to Use Without Prejudice

Marking Communications

Mark clearly:

• "WITHOUT PREJUDICE"
• "WITHOUT PREJUDICE – SUBJECT TO CONTRACT"
• In subject line if email
• At top of letter

Starting the Discussion

Example opening:

"This letter is written without prejudice and in an attempt to settle the current dispute between us. Nothing in this correspondence should be taken as an admission of liability."

During Negotiations

When negotiating:

• Keep discussions confidential
• Focus on settlement
• Make offers clearly
• Keep records of what's discussed

What's Protected?

Protected

• Offers of settlement
• Counter-offers
• Admissions made during negotiations
• Discussions about terms
• Documents marked WP and genuinely WP

Not Protected

• Facts that existed independently
• Statements not related to settlement
• Threats and impropriety
• Communications not genuinely for settlement
• Just labelling something WP when it isn't

Exceptions to Protection

When WP Doesn't Apply

Exception	Example
Agreement to waive	Both sides agree to use it
Proving settlement reached	"We agreed £X" - need to enforce
Unambiguous impropriety	Threats, discrimination
Perjury or fraud	Criminal conduct
Costs arguments	What was offered vs awarded

Unambiguous Impropriety

WP won't protect:

• Threats or blackmail
• Discriminatory statements
• Criminal conduct
• Clearly improper behaviour

Example: "Accept this offer or I'll make up allegations against you" - not protected.

Practical Considerations

For Employees

When entering WP discussions:

• Understand you're negotiating to settle
• Know what you'd accept
• Don't feel pressured
• Can reject offers
• Get advice if unsure

For Employers

When using WP:

• Ensure there's a dispute
• Be clear about WP status
• Don't behave improperly
• Keep records
• Consider protected conversation too

What If Talks Fail?

Back to Normal

If no settlement reached:

• Discussions can't be used in tribunal
• Both sides back to normal positions
• No admission from offers
• No prejudice from negotiations

Evidence Position

At tribunal:

• Can't mention WP discussions
• Can't refer to offers made
• Can't use admissions
• Treated as if they didn't happen

Settlement Agreement

If Agreement Reached

WP discussions typically lead to:

• Settlement agreement being drafted
• Terms reflecting what was agreed
• Legal advice for employee
• Clean break

Documenting Settlement

Once agreed:

• Settlement agreement usually "open" (not WP)
• Terms are final and enforceable
• WP discussions remain confidential

Common Mistakes

By Both Parties

Mistake	Problem
No actual dispute	WP doesn't apply
Just labelling something WP	Doesn't make it WP
Improper conduct	Loses protection
Mixing WP with open correspondence	Confusion

Protecting Yourself

Best practice:

• Be clear when discussions are WP
• Keep WP separate from open correspondence
• Don't behave improperly
• Document properly

Waiver of Privilege

When Both Agree

Either party can waive if:

• Both parties agree
• Explicitly decide to use WP material
• Common when referring to settlement discussions

Unilateral Waiver

Generally not possible:

• Both parties must agree
• One side can't waive for the other
• Except in limited circumstances

Using WP Strategically

For Settlement

WP allows:

• Making offers without risk
• Exploring options
• Testing positions
• Building towards agreement

Not for Information Gathering

Don't use WP to:

• Fish for information
• Test employer's position
• Gather evidence
• Delay proceedings

Tips for Success

Before Discussions

1. Confirm there's a dispute
2. Mark communications clearly
3. State WP purpose explicitly
4. Understand what you want
5. Get advice if needed

During Discussions

1. Keep focused on settlement
2. Behave properly
3. Don't make threats
4. Document offers
5. Consider timescales

After Discussions

1. If agreed, move to settlement
2. If not, continue dispute
3. Keep WP correspondence confidential
4. Don't refer to it in proceedings