Without Prejudice letter to employee or employer

Andrew Boast
7 min read
Without Prejudice employment law letter to employee: Advice from Employment Law Friend

Without prejudice communications can take place at any point during an employment law dispute. The without prejudice meaning states "without detriment to any existing right or claim" so it really is saying: 'Ignoring whether I am right or wrong, here is an offer to settle this dispute.' Or, 'Here is why I'm not paying you anything.'

Without prejudice letters/meetings/emails are not admissible at the Employment Tribunal so it is an area where the employer and employee can look to genuinely try and settle a dispute. If successful, the parties can draft a Settlement Agreement to set out the terms of a settlement, often including a payment, non-disclosure agreement (NDA), non-compete clause and any other terms that form part of the negotiations. You may even settle and continue to work for your employer.

But don't get your hopes up, because these private communications can be misleading. The best way to think of it is having two conversations with the same person where only one can be heard by the Tribunal:
    Open Communications these are any type of communication between the employee and employer that can be used as evidence in Tribunal proceedings. Open communications support your case and offer no ground or concession so as to weaken you position.
    Without Prejudice Communications any opinion can be had about the merits of your case. In fact you must be careful not to read too much into what is stated in a without prejudice letter to an employee as it could state anything even if the employer knows it not to be the case.

If you feel out of your depth with negotiations with your employer or employee then get in contact and see how we can help - help@employmentlawfriend.co.uk

How do you make your communication without prejudice?
  • Without Prejudice Meeting - before talking you must state out loud that the meeting you are having is without prejudice. For belt and braces you can email your employer or line manager before the meeting to confirm the meeting is without prejudice and confirm it verbally before the meeting starts.
  • Without Prejudice letter to employee - Without Prejudice should be stated at the top of any written communication whether an email or letter to employee.
  • Without Prejudice letter to employer - the same applies to an employee either making a without prejudice offer, or replying to an employer's without prejudice letter. Some employee's make the mistake of replying without including the statement which exposes their communication to being included within the Tribunal bundle.

There are times where it can be inferred that the communication is part of without prejudice negotiations, however don't risk it and always make sure if the communication is part of the behind the scenes communications, that you have the title big and bold at the top of your email/letter.

Saying it doesn't always mean you are protected
Without prejudice communications are supposed to be genuine negotiations to settle a dispute. In Cutts -v- Head 1984 is states:

"It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of that negotiation (and that includes, of course, as much a failure to reply to an offer as an actual reply) may be used to their prejudice in the course of proceedings. They should…. be encouraged fully and frankly to put their cards on the table ……"

"The public policy justification, in truth, essentially rests with the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the Court or of trial as admissions on the question of liability."

The without prejudice protections cannot be used to protect a communication that isn't made whilst negotiating a dispute. Here is an example of where the communications are not protected:

Jane has handed in her notice and left her job without raising a grievance. Jane leaves and writes the following letter to her employer:

Dear Sir/Madam,

Without Prejudice
I have left your employment as I am very unhappy with the way my boss treated me. I will take you to the Employment Tribunal unless you pay me £25,000.

Whilst the statement is clear at the top of the letter, there isn't a dispute whereby the employee and employer are negotiating. Jane should have raised a grievance, brought a Tribunal claim and then made this offer to ensure her letter would remain off the record. In its current format the letter could be on the record and provided to the Tribunal.

Here are some recent cases on what can and can't be considered as a dispute:

Don't protect information you need
The protection can swing both ways and you may want to use disclosures from a without prejudice meeting in your open correspondence to the Employment Tribunal.

If you try and include the communication in your evidence then it could be struck out. You should speak to an employment solicitor to get help.

Accepting a without prejudice offer

If you are happy with the terms of the offer then your employer will draft a Settlement Agreement. They will offer to pay for you to get a solicitor to advise you of the terms within the agreement. For more information on this and the amount they should offer to cover your legal fees then read our article on - Settlement Agreements.

Are you negotiating with your employer?
This can be a very time and you may not know all the tactics being used so please get in touch and see how we can help you.

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Frequently Asked Questions

The without prejudice principle protects negotiations with a genuine aim to resolve an existing dispute. It is exempt, and you may refer to the negotiations in court, if there has been any unambiguous impropriety.

Existing Dispute: A disagreement or formal grievance is not enough alone. One of the parties (usually you, the employee) must have already brought legal proceedings; or, have reason to have contemplated doing so, even if you have not actually contemplated doing so yet.

Unambiguous Impropriety: Here are some examples. However, the court or tribunal will decide whether certain behaviour constitutes unambiguous impropriety based on the circumstances of each case.
  • blackmail
  • physical violence
  • unlawful discrimination
  • threats
  • intimidation

There is a fine line when it comes to determining unambiguous propriety. in the case of Swiss Re Corporate Solutions Ltd v Sommer an employee copied her grievance emails to her and her husband's personal accounts for later referral in her grievance.

At the time this was described by the employer as a low level data breach due to the communications containing personal data and confidential client information. She was instructed to delete the emails and she did.

In without prejudice negotiations the employer's solicitors described the data breach as serious misconduct which could lead to summary dismissal, criminal convictions, fines and/or findings of a breach of the FCA Conduct Rules. This type of misconduct would create an obstacle to seeking work in her sector.

The tribunal originally found that this was a gross exaggeration to pressure her to accept the offer, amounting to unambiguous impropriety. However, the EAT found that there was an arguable basis for the allegations and no evidence of the employer's state of mind, or dishonesty on their part.

This was a close call and had the exaggeration been clearly dishonest and had the claimant had evidence of the defendants state of mind, the EAT may have found in the claimants favour.
This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice please get in contact and speak to your employment law solicitors.
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  • Drafting a without prejudice letter to employee or employer
  • Advice on negotiations and valuing your claim
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