A "without prejudice" conversation is a discussion that generally cannot be referred to or used as evidence in later legal proceedings, such as an employment tribunal claim.
How is this different from a protected conversation?
Without prejudice protection is a long-standing common law rule, and it comes with important conditions: it only applies where there is already an existing dispute between you and your employer — for example, if you have already made a legal claim or might reasonably consider making a claim — there is a genuine attempt to settle that dispute and there has been no serious wrongdoing during the settlement discussions. If no dispute yet exists, the without prejudice rule does not apply, even if the conversation concerns a possible settlement.
Worth checking
"Protected conversations" (formally known as pre-termination negotiations) are a separate, and often confused, concept. Introduced by section 111A of the Employment Rights Act 1996, it allows an employer to have discussions with you about ending your employment on agreed terms, even where no dispute yet exists. However, protected conversations only protect against claims for ordinary unfair dismissal, and it does not apply if there has been improper behaviour during settlement discussions.
In practice, where there is an existing dispute between the parties, the offer of and discussions about a settlement agreement may be covered by both the without prejudice rule and section 111A. If you're unsure whether a conversation you've had is protected, and what that means for how you respond, it's worth getting advice before you say anything further.
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Get in touch →This article provides a high-level overview for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for specific legal advice tailored to your individual circumstances.
Should you choose to formally instruct us, legal services will be provided by Nexa Law Limited. Employment Settlement Solicitor is a trading name of RJB Legal Services Ltd, a limited company registered in England and Wales with number 17353836. RJB Legal Services Ltd does not provide legal advice. RJB Legal Services is a consultant practice of Nexa Law Limited, a limited company registered in England and Wales with number 10209198, which is authorised and regulated by the Solicitors Regulation Authority under SRA number 633024.