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1. Introduction: What Does “Without Prejudice” Mean?

In workplace disputes, “without prejudice” (WP) is a legal phrase that means settlement discussions—whether in letters, emails, meetings, or conversations brokered by Acas—are “off the record.” This protection encourages both sides to negotiate openly, make offers, or admit mistakes, knowing these attempts can’t usually be used against them in court or Tribunal if talks break down. When Acas is involved, their conciliators often facilitate WP discussions, helping parties explore settlement options in a confidential setting.

For employees, this can be reassuring: you can discuss possible resolutions or raise concerns frankly, without weakening your case if negotiations fail. However, WP is not a magic shield. It only applies in certain situations, and there are important exceptions and pitfalls to be aware of.

2. When Does “Without Prejudice” Apply?

WP protection only exists if there is a genuine dispute between you and your employer. The timing and context are crucial.

WP applies when:

• You’ve raised a formal grievance, Tribunal claim, or written complaint.

• There is a clear dispute about your treatment, dismissal, or pay.

• Both sides are genuinely trying to settle the dispute.

WP does NOT apply when:

• There’s no formal dispute (e.g., you haven’t raised a grievance).

• The conversation is just a routine HR chat or appraisal.

• The label is used on a document that isn’t a genuine settlement attempt.

Example:
If you’ve already submitted a grievance about discrimination and your employer invites you to a WP meeting, those discussions are likely protected. But if your manager calls you in “out of the blue” and offers money to leave before you’ve raised any issue, WP may not apply.

3. Common Pitfalls and Misunderstandings

Many people believe that simply writing “without prejudice” on a letter or email makes it protected. In reality, the label only works if there’s a real dispute and the communication is a genuine attempt to settle.

Common mistakes:

• Assuming all “WP” conversations are off the record.

• Relying on WP for routine HR chats or performance reviews.

• Not realising that “protected conversations” under s.111A ERA only cover unfair dismissal—not discrimination or whistleblowing.

Risks:

• Employees may find their “WP” conversations quoted in Tribunal if there was no dispute.

• Employers may accidentally expose themselves by using WP too early or in the wrong context.

4. The “Unambiguous Impropriety” Exception

WP is not a licence to behave badly. If a party uses WP negotiations to hide blackmail, perjury, or discrimination, the shield can be broken.

Examples of impropriety:

• Threats: “Resign or we’ll ruin your reference.”

• Discrimination: “We don’t want women in this role.”

• Blackmail or criminal conduct.

What happens:
If you experience threats or discriminatory remarks in a WP meeting, keep detailed notes of what was said, who was present, and the context. In rare cases, judges may allow secret recordings or notes as evidence if the behaviour is truly shocking (see Ferster v Ferster).

5. Waiving Privilege: How WP Protection Can Be Lost

WP privilege can be lost if either party refers to the content of WP negotiations in open correspondence or witness statements.

Privilege is waived if:

• You mention a WP offer in an open letter (“We offered her £10,000 and she refused!”).

• WP content appears in a Tribunal witness statement.

Consequences:

• The entire chain of WP emails or offers can become admissible.

• Embarrassing tactics or admissions may be revealed.

Practical tip:
Keep settlement talks strictly separate from your main case documents. Never refer to WP content in your ET1, grievance, or witness statement.

6. Typical Outcomes of WP Negotiations

WP negotiations can end in several ways:

• Settlement:
  Both sides agree terms, sign a Settlement Agreement, and move on. This often includes agreed references, confidentiality clauses, and a financial payment.

• No settlement:
  If negotiations fail, the case goes to Tribunal. The judge ignores all WP offers and admissions.

• Strategic use:
  Parties use WP to test the waters, make offers, or admit fault without risk.

Example:
An employer admits in a WP letter that the redundancy process was flawed and offers compensation. If the employee rejects the offer, the admission can’t be used in Tribunal.

7. Key Evidence: What Matters Most

The effectiveness of WP protection depends on timing, context, and documentation.

What to keep:

• All WP emails, letters, and meeting notes.

• Detailed notes of who was present, what was said, and the context of any WP meeting.

• The WP label in the subject line or heading of settlement communications.

If you suspect impropriety, document everything and seek advice before recording or escalating.

8. Frequently Asked Questions

Can I record a WP meeting?
Covert recording is risky and may breach trust or policy. If you suspect serious impropriety, detailed notes are usually safer. In rare cases, a recording may be admitted if the behaviour is truly shocking.

What if I’m offered money to leave before raising a grievance?
If there’s no existing dispute, WP may not apply. The conversation might be protected under s.111A ERA for unfair dismissal, but not for discrimination.

Does WP protect discriminatory remarks?
No. Discriminatory comments or threats made during WP negotiations can break the shield and be admitted as evidence.

How do I know if privilege has been waived?
If either side refers to WP content in open correspondence or witness statements, privilege is likely waived.

What if my employer refers to WP offers in open correspondence?
You can ask the Tribunal to admit the entire chain of WP communications, which may reveal more than the employer intended.

9. Checklist: Using WP Negotiations Safely

• Only use WP when there’s a genuine dispute (grievance, claim, or formal complaint).

• Label all settlement communications “without prejudice,” but don’t rely on the label alone.

• Keep settlement talks separate from open correspondence and case documents.

• Never refer to WP content in your ET1, grievance, or witness statement.

• Document meetings and offers with detailed notes, including who was present and what was said.

• If you suspect impropriety, seek advice before recording or escalating.

For practical strategies on post-termination restrictions, see how Breach of Confidentiality & NDAs (Employee Defence) connects with challenging restrictive covenants in UK employment law.

10. Final Thoughts

Without prejudice negotiations are a powerful tool for resolving disputes quietly and frankly, but they’re not foolproof. Understanding when WP applies, how privilege can be lost, and what exceptions exist is vital for protecting your rights and negotiating effectively. If you’re unsure, pause and seek advice. Careful documentation and strategic use of WP can help you reach a fair settlement without risking your case.

Disclaimer: This content is for general information only and does not constitute legal, financial, or tax advice. Outcomes may vary depending on your individual circumstances.