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