UK: "Can We Talk?" – How Can Employers Safely Have Without Prejudice Conversations With Employees?

Last Updated: 12 September 2012
Article by Reema Jethwa

Off the record or without prejudice discussions can be a useful tool for employers when attempting to resolve a dispute with an employee. However, simply labelling the discussion as 'without prejudice' does not necessarily mean that it cannot be revealed later at Tribunal.

In the current economic climate employers (and occasionally employees too) will often want to avoid time consuming procedures and seek to negotiate an agreed departure.  If the deal is agreed – fine.  However, if the deal is not done, employers can find acts done and statements made in trying to agree the deal used against them by the employee.  Courts and Tribunals encourage settlement so allow proper negotiations to be covered by the without prejudice rule.

The 'without prejudice' rule

The without prejudice rule will prevent written and oral statements made in a genuine attempt to settle an existing dispute from being put before the Tribunal as evidence against the party which made them. For the rule to apply there must be a genuine dispute; both parties should agree that the rule applies and the discussions must not be improper.

Employers need to be careful with discussions on the back of a grievance being raised.  A grievance is not necessarily a dispute.  A grievance may be upheld or dismissed for reasons which an employee accepts, so that there is no dispute.

For the rule to apply both parties must agree to discuss the matter on a without prejudice basis, and the employee must understand and appreciate what 'without prejudice' means. If, for example, an employer simply states that the discussion is to be held on a without prejudice basis, bearing in mind the unequal relationship of the parties and the likely vulnerable position of the employee, it is unlikely that a Tribunal will consider this to be a conscious agreement and the without prejudice rule will not apply to this communication.

Finally, use of the rule must not be improper.  It would be an abuse of the rule to exclude evidence that undue pressure was applied, (such as threatening the employee to settle the claim against the company).  Similarly, it would be an abuse for admissions made in the negotiations, which support the employee's claim, to be denied in Tribunal.  

Employers need to be careful to ensure the rule applies properly or what they do may come back to haunt them, as illustrated by the cases below.

Vernon v London Borough of Hammersmith and Fulham

For 6 years, Vernon made several applications for promotion to Principal Social Worker.  Each time she applied she was unsuccessful.  She brought a claim against her employer on the grounds that they had discriminated against her due to her race in the promotion procedure that they followed. During the course of settlement discussions, the employer's solicitor sent an email to ACAS confirming that they would not be making an offer to settle the case. The email went on to criticise the employee's abilities, stating that Vernon's poor report writing was one of the reasons why she wasn't suitable for promotion and referred to her Tribunal claim form, which contained grammatical and spelling errors.  The e-mail went on to state that she was not "capable of the promoted role of principal social worker". The solicitor agreed that the ACAS conciliator could forward the correspondence to Vernon, who was still an employee at the time. As a result of the content of this email, she added a claim for victimisation arguing that these comments were intended to deter her from pursuing her discrimination claim.  

The Tribunal held that the email had a "profound effect" on her as she found it extremely upsetting. The email went beyond the employer's stated defence (that it had simply appointed a better candidate) and implied that she was not capable of being promoted then or in the future due to her lack of ability.  The Tribunal held that this put improper pressure on Vernon to withdraw her claim. Therefore, even though the communication with the ACAS conciliator was labelled 'without prejudice', it was disclosable as evidence in the Tribunal.  Although ultimately the Tribunal rejected her discrimination claim, because of the email sent by the employer's solicitor to ACAS, Vernon was able to win her claim for victimisation.  

BNP Paribas v Mezzotero

In the older case of BNP Paribas v Mezzotero, the Tribunal confirmed that it was not sufficient for the employer just to tell the employee that they intended to communicate on a without prejudice basis – a dispute between the parties had already to be in existence which they were genuinely trying to compromise and the employee must agree. Here, a female employee raised a grievance complaining that she had been prevented from returning to her old job following a period of maternity leave. She was invited to a meeting, at which she was told that her employer wanted to talk 'without prejudice' and she was offered the opportunity to leave in return for a settlement package. Ultimately settlement was not achieved and the employee brought a claim in the Tribunal at which she tried to use the content of the without prejudice discussion as evidence. Essentially she wanted to show that the response to her claim that the employer did not want her back was an immediate offer of a package not to return.  The Employment Appeal Tribunal ruled that the employer's suggestion of a settlement package was not protected by the without prejudice rule, on the basis that there was no prior dispute about termination. It was also decided that it was in the public interest that allegations of unlawful discrimination in the workplace could be heard by the Tribunal and, therefore, discriminatory comments made in the course of the without prejudice discussions were admissible as evidence.

What does this mean for employers? 

  • Ensure that there is a genuine dispute. If not – proceed with caution.
  • Get the employee's agreement to the without prejudice conversation and ensure that the employee understands what it means.
  • Be careful about the timing of without prejudice conversations during disciplinary, grievance or redundancy procedures. These various procedures could be held in tandem with without prejudice discussions. If settlement is not agreed then the employer should be able to rely on a fair procedure being followed otherwise.
  • Try to avoid making any damaging admissions during without prejudice communications, especially in discrimination cases. It is advisable to keep focussed on the settlement terms.
  • Ensure that all correspondence is marked "without prejudice and subject to contract" to highlight that written terms (usually a Compromise Agreement) will need to follow any oral agreement.
  • Avoid overly aggressive approaches.  A settlement achieved under duress can easily unravel.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.