UK: Employment Law: Without Prejudice?

Last Updated: 3 March 2005
Article by Robert Hill and Matthew Howse

When faced with an underperforming employee, the offer of a pay-off in an "off the record" chat may sometimes appear to be the best option to avoid the stresses, strains and management time involved in the performance improvement procedure. A meeting may be called where settlement options under the description of "without prejudice" are offered. While this approach may still be worthwhile in certain situations, employers need to be careful at any such meeting.


The without prejudice principle can be used to protect "off the record" discussions so long as a genuine dispute exists between the parties and the without prejudice communication is a true attempt to settle the dispute. The principle is designed to encourage frank discussion and aid settlement.

It was thought that providing that a meeting was stated to be "without prejudice", any discussions could not later be submitted in evidence at subsequent hearings. This meant that when faced with an employee that you wanted to be rid of, if you held a without prejudice discussion where a pay off was suggested but turned down the discussion and the offer could not later be relied on to substantiate any claim. In such a situation an employee may, for example, bring a constructive dismissal claim alleging that you had eroded all trust and confidence that existed between you by making an offer of pay off. However, it was believed that so long as the employer had caveated the meeting as without prejudice the claim would fail as the very evidence he sought to rely on would be inadmissible. However the recent case of BNP Paribus v Mezzotero has considerably limited the scope of the without prejudice rule in relation to employment termination negotiations.


In Mezzotero the employee, a woman employed as a vice president at an investment bank, was encouraged not to return to her usual duties following her second period of maternity leave. She was told at her pre-return to work meeting that the market was difficult and that her old role was no longer available but that if she wanted to return to work she should find another role within the bank. Ms Mezzotero raised a grievance claiming that she was being demoted and humiliated by these actions and she concluded that this treatment could only be explained by either the fact that she had been on maternity leave; or that she was a woman.

In response to the grievance being raised Ms Mezzotero was called into a meeting by her employers and was informed that the matter was still being investigated. At that stage Ms Mezzotero’s employers stated that the meeting was to be held without prejudice and explained that this meant that any matters that they discussed could not be used in subsequent legal proceedings. It was explained to Ms Mezzotero that the bank felt that she was no longer suited to her role and consequently they wished to terminate her employment but that they were willing to offer her a package. Ms Mezzotero was advised to consult her solicitor on the package and to clear her desk.

Ms Mezzotero declined to accept the package offered and brought, amongst others, a claim of victimisation under the Sex Discrimination Act. As evidence for this claim Ms Mezzotero sought to rely on the discussions that took place during the without prejudice meeting. The bank claimed that the discussion that took place during the meeting was inadmissible due to the fact that it was held without prejudice and was an attempt to settle an existing dispute. The Employment Tribunal held that there was no genuine dispute in existence when the meeting took place and therefore to hold that the discussions at the meeting were without prejudice would be an abuse of the principle.

The Employment Appeal Tribunal dismissed the bank’s appeal, reiterating that for the without prejudice principle to apply there had to be a genuine dispute in existence and the discussions had to be for the purpose of settling that dispute. The EAT specified that the fact that a grievance had been raised by Ms Mezzotero and that this was still live at the time that the meeting was not necessarily evidence that the parties were in dispute. It was stated that a grievance may ‘be upheld, or alternatively dismissed for reasons which the employee finds acceptable, so that the parties never reach the stage where they could properly be said to be "in dispute"’.

Additionally, the EAT went on to illustrate how the Tribunal should interpret the principle in a flexible and pragmatic manner to avoid abuse of the without prejudice rule. The EAT stated as the meeting was only labelled without prejudice at the start when Ms Mezzotero had no opportunity to seek legal advice and she was clearly in a vulnerable position, there was an imbalance in power between the parties. The EAT stated that in such circumstances, there would be a tendency for the tribunal to interpret the without prejudice rule in the employee’s favour in an attempt to protect the weaker party. This creates a problem for employers.


The reason for the existence of the without prejudice principle is to allow parties to speak honestly without the fear that these discussions will be admitted in subsequent legal proceedings but Mezzotero indicates that even where there is a genuine dispute, such protection will not be afforded where there is an imbalance of power. Although there is likely to be an imbalance of power in most employer and employee conversations, it would be wrong to conclude that without prejudice protection can no longer be relied on in the employment context.

The EAT addressed this issue and stated two possible justifications for such reasoning in the Mezzotero case. Firstly, that it is a well known principle that the without prejudice rule should not be allowed to protect discussions which are of "unambiguous impropriety". It was suggested that in the case of discrimination to allow an employer to hide behind the without prejudice rule would certainly be an "unambiguous impropriety". Secondly, that the Mezzotero case involved a claim for sex discrimination and such claims are known to be fact-sensitive. Accordingly, in order to fairly hear a discrimination claim it is vital that the tribunal has all the primary facts before it. To allow an employer to call a meeting without prejudice and as a consequence achieve privileged status for everything discussed during that meeting would clearly be wrong, and not in the public interest if the employer was to use the meeting an opportunity to be openly discriminatory. For example, an employer telling an employee "we no longer wish to employ you because you are black" cannot be allowed protection via the without prejudice rule as this is clearly an abuse.

The EAT stated that any decision to waive privilege must be based on the particular circumstances of the case. It does appear that in Ms Mezoterro’s case, the fact that her claim was one of discrimination may have proved the decisive factor in the bank being denied the protection of the without prejudice principle.


In conclusion, employers should act cautiously in severance negotiations. The Mezzotero decision could be interpreted as only applying to fact-sensitive or discrimination claims - there is certainly a strong suggestion that the without prejudice principle will be interpreted pragmatically and thus in favour of the weaker party, the employee (whether the employee seeks the protection of the rule or seeks the rule to be disapplied). Where claims of discrimination are concerned it appears clear that the employer will not be allowed to hide behind the rule, but where unfair dismissal claims are concerned the position looks far less certain. The best advice to employers would be to ensure that severance negotiations are transparent and that nothing is ever said under the supposed protection of the without prejudice rule the employer would not wish to have repeated in the employment tribunal.

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.