Without prejudice is a legal principle that protects genuine settlement negotiations from being used as evidence in subsequent proceedings. In employment law, it is particularly relevant to discussions about ending employment and the terms on which that might happen. Understanding the difference between without prejudice and protected conversations helps you navigate these discussions safely.
A without prejudice communication is one made in a genuine attempt to settle an existing dispute. If the settlement discussions fail and the matter proceeds to tribunal, neither party can refer to what was said or offered in the without prejudice negotiations. The protection is based on the public policy of encouraging parties to resolve disputes without litigation.
Section 111A of the Employment Rights Act 1996 introduced the concept of protected conversations. These allow an employer to have a conversation with an employee about ending the employment on agreed terms, even where no existing dispute has arisen. The conversation is inadmissible in an ordinary unfair dismissal claim. However, the protection does not apply to discrimination claims, whistleblowing claims, or automatically unfair dismissal claims, which is a significant limitation.
Both without prejudice protection and Section 111A protection can be lost in certain circumstances. Improper behaviour by either party, including undue pressure, misrepresentation, or threats, can cause the protection to fall away. If the employer threatens to dismiss the employee unless they accept the offer, or gives them an unreasonably short time to consider it, the protection may not apply.
In limited circumstances, the existence of without prejudice communications can be referred to even if the content cannot. For example, to establish that a settlement was reached or to show the terms of an agreement that was made. But the content of the negotiations remains protected.
Without prejudice communications made in genuine settlement negotiations are inadmissible in subsequent proceedings. Protected conversations under Section 111A allow settlement discussions even without an existing dispute, but the protection is narrower and does not cover discrimination or whistleblowing claims. Improper pressure removes the protection. An employment law barrister can advise on how to handle settlement discussions safely.
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