Definition
A legal principle that protects communications made in a genuine attempt to settle an existing dispute from being disclosed in subsequent legal proceedings. Without prejudice discussions allow both parties to negotiate openly without fear that their concessions will be used against them.
UK Context
The without prejudice rule is a common law principle recognised by UK courts and employment tribunals. It applies only where there is an existing dispute. The leading case is Unilever v Procter & Gamble (2000). In employment law, the rule interacts with the statutory concept of protected conversations under Section 111A ERA 1996.
Best Practices
- Ensure there is a genuine existing dispute before initiating a without prejudice discussion
- Label communications clearly as 'without prejudice' but understand that the label alone does not create protection
- Take legal advice before initiating without prejudice discussions, particularly around exit negotiations
- Keep records of without prejudice communications separately from the employee's personnel file
Frequently Asked Questions
What does without prejudice mean?
Without prejudice means that the communication cannot be used as evidence in subsequent legal proceedings. It protects both parties during settlement negotiations, allowing them to make offers and concessions without those being held against them if the negotiations fail.
Can an employer just label anything without prejudice?
No. Simply adding the words 'without prejudice' to a communication does not automatically protect it. Two conditions must be met: there must be an existing or contemplated dispute, and the communication must be a genuine attempt to settle it. If these conditions are not met, the communication can be disclosed in proceedings.
What is the difference between without prejudice and a protected conversation?
Without prejudice requires an existing dispute and protects all types of claims. A protected conversation (under Section 111A ERA 1996) can happen before any dispute exists but only protects against ordinary unfair dismissal claims — it does not protect against discrimination, whistleblowing, or automatically unfair dismissal claims.