"Without prejudice": what it really means for you

"Without prejudice" is one of the most misused phrases in working life. Written at the top of an email it does not make the contents secret, and it does not make them disappear. It is a specific legal rule with specific conditions, and knowing where it applies changes how you handle an exit negotiation.

What the rule is for

The without prejudice rule exists so that people can try to settle a dispute honestly without their attempts being used against them later. If every offer could be waved in front of a judge as an admission, nobody would ever make one.

Where the rule applies, the communication cannot be put before a tribunal or court as evidence, whether it is a letter, an email, a meeting or a phone call.

The two conditions

The label alone does nothing. Two things have to be true.

• There must be an existing dispute. Not just an awkward relationship or a difficult appraisal, but a genuine dispute that the parties are trying to resolve. A performance concern that has not yet crystallised into a dispute usually is not enough.
• The communication must be a genuine attempt to settle it. Content matters more than the heading. An email marked without prejudice that simply threatens you, or that is really about ordinary day to day business, is not protected.

The reverse is also true. A conversation that meets both conditions is protected even if nobody said the magic words.

Where it does not protect anyone

• Unambiguous impropriety. Where the privilege is used as a cover for perjury, blackmail or serious impropriety, a tribunal can admit the evidence. The threshold is high and rarely met, but threats such as "settle or we will report you" have been argued under it.
• Whether an agreement was reached. If the dispute is about whether a settlement was actually agreed, the correspondence can be looked at to answer that question.
• Costs. Where an offer is marked "without prejudice save as to costs", it stays out of the decision on the merits but can be shown to the tribunal when costs are considered afterwards.
• Discrimination and whistleblowing. These need care. The without prejudice rule can apply to a genuine dispute about them, but where there is no dispute yet, and the employer is relying only on the statutory protected conversation rules, those rules do not cover discrimination or whistleblowing claims at all.

Without prejudice versus a protected conversation

They are different tools and they overlap.

Without prejudice is a common law rule. It needs an existing dispute, but where it applies it covers all claims.

A protected conversation under section 111A of the Employment Rights Act needs no existing dispute, which makes it useful to employers who want to open an exit discussion out of nowhere. In exchange, its protection is narrow: it applies only to ordinary unfair dismissal, and it falls away if the employer behaves improperly.

So a conversation may be protected under one, both, or neither. Employers frequently head a letter with both phrases and hope for the best.

What this means for you in practice

Do not assume a discussion is untouchable because of the heading. Read what it actually says, and consider whether there was a real dispute at the time.

Keep your own dated note of any "off the record" meeting. If the protection does not apply, that note is evidence. If it does apply, you have lost nothing.

Do not use the label as cover for saying something unwise. If you make an admission or an intemperate threat in a communication that turns out not to be protected, it can be read out at a hearing.

And do not feel pushed into responding at speed. Asking for the proposal in writing and taking advice is entirely normal, and any employer's adviser will have expected it.

The useful next step

If you have received a without prejudice letter, the important questions are what claims you have, what they are worth, and whether the offer reflects that. A specialist employment solicitor will tell you in one conversation, and if the letter leads to a settlement agreement your employer will usually contribute to the cost of that advice anyway.