As lawyers we regularly use the “without
prejudice” rule as a useful tool to try to settle disputed matters.
However it is also a common feature used by employers with departing
(or soon to be departed) employees.
“Without Prejudice” is a rule of evidence that any communications
with the purpose of settling an existing dispute cannot be put
before the court unless both parties to the communication agree.
This limitation continues even after the dispute has been concluded.
It is not surprising that such discussions commonly arise in the
employment sphere, and commonly at the internal stages – Employers
knowing that their interests may be best served by settling rather
than incurring the legal costs of defending an Employment Tribunal
(which aren’t recoverable), the lost management time and the lottery
which a tribunal can sometimes be.
However there appears to be a tendency to use “without prejudice”
too readily, perhaps employers not fully understanding the
application of the rule in order to gain protection!
So What Happens in Reality?
The case of Mezzotero (2004) fuelled claimant solicitors to
carefully examine the use of “without prejudice” within internal
discussions between Employer and employee. It is necessary to
rehearse the brief facts of the case to understand why.
Mezzotero (M) raised a grievance of sex discrimination following her
return from maternity leave. At the grievance hearing (and before it
had commenced formally) her employer asked her if she would agree to
without prejudice discussions. She agreed and upon doing so the
employer expressed their wish to terminate her employment and pay
her a termination payment. M sought to rely on these discussions in
support of her claim for sex discrimination and victimisation. The
EAT agreed with this course of action on two grounds:
- The “without prejudice” rule could not be used to make the
content of the discussions privileged as there was no “existing
dispute” to be settled. The first M had any idea that there
might be a dispute (ie. her leaving) was within the so called
“without prejudice” discussions themselves. A grievance is not
automatically a “dispute” between the parties. It is a
preliminary attempt to avoid being in dispute.
- As this case involved discrimination allegations it may be
in order for the court to look behind such discussions to “root
out the evil of discrimination” on public policy grounds.
Two more cases (2007) have sought to deal with “without prejudice”
rule. These have reaffirmed that such a rule does exist and plays an
important role within the workplace, but can only be invoked where
there is an “existing dispute” between the parties.
One case dealt with the issue of bilateral implied waiver of the
application of the “without prejudice rule” to their discussions.
Here the two parties had had such discussions in an earlier dispute.
When a further dispute arose these discussions were relied on by
both parties in an internal formal grievance hearing. The Court held
that both parties had agreed to waive the privilege attached to the
discussion by disclosing the content in the grievance hearing. Both
parties must have known that a possible outcome would be for the
content of the grievance meeting to be detailed within Tribunal
The other case involved allegations by the employee that there was
no genuine dispute and so the so called “without prejudice”
correspondence could be disclosed. Here the two parties had been
exchanging correspondence about a termination package following the
Employers expressed intention to dismiss the employee before the end
of his contractual term. The court concluded that the correspondence
was privileged. There was a clearly a potential for litigation and a
genuine attempt to settle that – “the crucial consideration would be
whether in the course of negotiations the parties contemplated or
might reasonably have contemplated litigation if they could not
Points to consider:
Copyright 2006 - 2010 Taylors Solicitors
- Labelling a discussion “without prejudice” does not mean it
will be so.
- To be “without prejudice” there should be a “dispute”
– don’t assume the employee knows which route you are taking ie
- A “grievance” does not automatically mean there is a
- Try to allow grievances or disciplinary procedures to run
their course to enable the disputes to become more clearly set
- Try to make the employee make the first move towards
- Take extreme care in discrimination cases – avoid admissions
- Keep the decision maker in internal procedures outside the
scope of negotiations.
- Any meetings or correspondence should be clearly marked
without prejudice to demonstrate the parties intentions.
- Avoid referring to “without prejudice” discussions or
correspondence subsequently and if you need to, do so with