The words ‘without prejudice’ often appear in the heading of correspondence when dealing with employers but it use is frequently abused.
‘Without prejudice’ is a common law principle which prevents statements, whether written or oral, which are made in a genuine attempt to settle an ‘existing dispute’, from being put before an employment tribunal or other court as evidence in legal proceedings between those parties about that dispute.
Its use is for the purpose of facilitating a settlement, for example as an alternative to disciplinary proceedings or dismissal. Without it employers might be reluctant or wary of making offers of settlement should it be used against them at a legal proceedings. Both parties (or their representatives) can use ‘without prejudice’ in seeking to reach a settlement.
The ‘protection’ against later disclosure in legal proceedings only applies where the words ‘without prejudice’ appear in the correspondence and the correspondence refers to an attempt to settle an ‘existing dispute’ (its use in any other context is just verbiage). Its also useful to note that that the ‘protection’ of ‘without prejudice’ is also lost where where some ‘unambiguous impropriety’ occurs (e.g. a party acts unlawfully or wholly unreasonably e.g. fraud, deception, unlawful discrimination, use of threats or intimidation).
It should also be noted that the simple fact of making an offer with a view to settling an existing dispute does not of itself amount to ‘unambiguous impropriety’ because one party would have preferred the other to take a different approach to trying to resolve their dispute.
The notion of ‘existing dispute’ is difficult to define and determining exactly what constitutes an ‘existing dispute’ for the purposes of the ‘without prejudice’ principle can be problematic. For example, the fact that the employee has raised a grievance will not necessarily constitute an ‘existing dispute’. Generally speaking for there to be an ‘existing dispute’ one of the parties has brought, or might reasonably have contemplated bringing, legal proceedings against the other party at the time that the settlement offer and discussions took place.
NUT Area 3 