Discussions or correspondence during negotiations which are without prejudicecannot subsequently be disclosed as evidence in a Court or Employment Tribunal by either party, unless both agree to waive confidentiality.  This is intended to encourage parties to settle disputes without recourse to the Courts without prejudice to their positions. The idea is that if people can be confident their conversations will not be used against them at a later date, they will be more direct and productive and more willing to make concessions in negotiations.

The without prejudice rule will not apply where there is no existing dispute between the parties. This is a matter of fact and the position cannot be change for, by example, writing ‘without prejudice’ on the top of a letter.

In certain, limited circumstances the without prejudice rule will be disapplied where there is “unambiguous impropriety”, for instance, where the discussion involves an act of discrimination.

Example:

Rob brings a grievance challenging his selection for redundancy. His employer makes a ‘without prejudice’ offer to increase his redundancy payment if he withdraws his grievance.  Given that there is a pre-existing dispute between the parties at this stage (over his redundancy selection), the fact of his employer’s financial offer could not be referred to in any future employment tribunal claim he may bring.

 

See also settlement agreements, compromise agreements and pre-termination negotiations.

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Other employment law terms

  1. ACAS Early Conciliation
  2. Adoption appointments
  3. Adoption leave
  4. Alternative dispute resolution
  5. Ante-natal care
  6. Apprenticeship
  7. Basic award
  8. Collective consultation
  9. Compensatory award
  10. Compromise agreement
  11. Constructive dismissal
  12. Contract of employment
  13. Disciplinary hearing
  14. Discrimination
  15. Employee shareholder
  16. Employment tribunal
  17. ETO reason
  18. Flexible working requests
  19. Grievance
  20. Gross misconduct
  21. Harassment
  22. Industrial action
  23. Injury to feelings
  24. Maternity and parental rights
  25. Maternity leave
  26. Maternity pay
  27. Mediation
  28. Parental leave
  29. Paternity leave and pay
  30. Polkey deduction
  31. Pre-termination negotiations
  32. Protected characteristics
  33. Redundancy
  34. Restrictive covenants
  35. Settlement agreement
  36. Shared parental leave
  37. Staff handbook
  38. Statutory annual leave
  39. Strikes
  40. Study and training rights
  41. Summary dismissal
  42. Sunday working
  43. Trade union
  44. TUPE
  45. Unfair dismissal
  46. Unlawful deductions
  47. Victimisation
  48. Whistle-blowing
  49. Working Time Regulations
  50. Written particulars
  51. Wrongful dismissal
  52. Zero hours contracts