This guide applies to Employment law in England, Scotland and Wales.
If you’ve been involved in a workplace dispute, you may have come across the phrase “without prejudice” in a letter, email, or during a meeting with HR. It’s a common legal term, but it can feel confusing if you’re not familiar with how it works.
In simple terms, “without prejudice” is a way of marking conversations or documents so that they can’t normally be used as evidence in an employment tribunal. It’s most often used when an employer or employee is trying to resolve a dispute without going to a full hearing.
Understanding what this phrase means, when it can (and can’t) be used, and how it affects your rights is important if you’re in conflict with your employer. This guide will break down the concept in plain English, highlight common scenarios, and explain the limits you need to be aware of.
What Does ‘Without Prejudice’ Mean?
In UK employment law, “without prejudice” means that any offers, discussions, or correspondence made under this label cannot usually be shown to an employment tribunal or court. The idea is to allow both parties — employer and employee — to have honest conversations about resolving a dispute without worrying that what they say will later be used against them.
- Here’s a simple way to think about it:
“Open” correspondence: Can be referred to in tribunal proceedings (for example, a formal grievance letter). - “Without prejudice” correspondence: Cannot usually be referred to, because it’s considered part of private settlement negotiations.
It’s important to remember that just writing “without prejudice” on a document doesn’t automatically make it protected — the context matters. The rule only applies if there’s already a dispute and the communication is genuinely aimed at resolving it.
When Can ‘Without Prejudice’ Be Used?
The “without prejudice” rule only applies in specific situations. For it to be valid:
There must already be a dispute
You and your employer must be in conflict — for example, you’ve raised a grievance, are considering a tribunal claim, or are disputing how your dismissal was handled.
If there’s no real dispute, the rule won’t apply (e.g., a casual HR chat about future plans wouldn’t qualify). That being said, the requirement for a dispute is interpreted broadly, so a disagreement that could reasonably lead to you making a Tribunal claim is enough.
The communication must be a genuine attempt to settle
The purpose of the conversation or document must be to resolve the issue, not to intimidate or pressure you.
Typical settlement discussions include things like redundancy packages, financial offers to end employment, and agreed references.
Common workplace examples
- Settlement offer letter: Your employer might send a letter marked “without prejudice” offering a financial sum if you agree not to pursue a tribunal claim.
- HR meeting: A manager may call a meeting “without prejudice” to discuss how to settle a dispute, often involving your exit from the business.
- Negotiations after a grievance: If you’ve lodged a formal complaint, your employer might suggest resolving it through a settlement agreement, discussed “without prejudice.”
- Acas early conciliation: Before you can bring most tribunal claims, you must first go through Acas early conciliation. Discussions with Acas are treated as confidential and “without prejudice”, which means what you say in that process can’t normally be shared with the Tribunal. Even after the end of the early conciliation period, you may continue to negotiate without prejudice via Acas.
Why employers and employees use it
- Employers: To explore settlement without weakening their defence if talks break down, and to reduce the risk of costly, time-consuming tribunal claims.
- Employees: To consider offers and negotiate openly without weakening their claim if no agreement is reached.
Limits of ‘Without Prejudice’ Protection
Although “without prejudice” is a powerful legal tool, it’s not a free pass for employers to say anything they like without consequences. There are important limits:
1. The label alone doesn’t guarantee protection
A letter or email must genuinely relate to a dispute and settlement negotiations.
Simply writing “without prejudice” at the top isn’t enough if the content doesn’t meet the legal test.
2. No protection for discrimination, harassment, or victimisation
If an employer uses “without prejudice” as cover for unlawful behaviour — for example, making discriminatory remarks about race, gender, or disability — a tribunal may still allow that evidence.
The same applies if an employee is threatened or bullied during a so-called “without prejudice” meeting.
3. Tribunal discretion
Employment tribunals can decide whether a document or conversation is genuinely “without prejudice.”
If they believe the rule has been misused, the communication may still be admitted as evidence.
4. Improper pressure or bad faith
If “without prejudice” is used to pressure you unfairly into accepting a settlement (e.g., “sign this today or you’ll be dismissed”), a tribunal may rule that the protection doesn’t apply.
Key takeaway: “Without prejudice” can provide privacy in settlement talks, but it’s not absolute protection. The context and intention behind the communication really matter.
Protected Conversations
There’s also something called a “protected conversation” under section 111A ERA 1996. Unlike “without prejudice,” this can be used even if no dispute exists, but it only protects discussions that happen prior to your dismissal. Also, the protection is only for claims about ordinary unfair dismissal. It doesn’t cover discrimination, whistleblowing, or other claims - and if an employer behaves improperly (for example, pressuring you unfairly), the protection may not apply. In summary, without prejudice needs a dispute; protected conversations don’t - but their protection is narrower.
Without Prejudice vs. ‘Without Prejudice Save as to Costs’
You may also come across the phrase “without prejudice save as to costs.” While it sounds similar, it has a slightly different purpose.
What it means
- “Without prejudice”: The content cannot usually be shown to a tribunal at all
- “Without prejudice save as to costs”: The content stays hidden during the case, but can be shown after the tribunal has decided the outcome if there’s a dispute about legal costs.
Why it matters in employment cases
- In employment tribunals, each side usually pays their own legal fees. However, if one party has acted unreasonably, the tribunal can order them to contribute to the other’s costs.
- A “without prejudice save as to costs” letter can be used to show that a reasonable settlement offer was made — and that the other party wasted time and resources by refusing it.
Example scenario
- Your employer offers you a “without prejudice save as to costs” offer.
- You reject it and continue with your Tribunal case all the way to final hearing.
- The employer has to pay £4,000 for fees for a barrister for the final hearing.
- The Tribunal rules in the employer's favour.
- The employer can then show the letter and argue that you acted unreasonably by refusing a better deal, asking the tribunal to reduce or offset your costs. The Tribunal balances factors including your ability to pay, so for example they might decide to make the costs order in this case but reduce it to £2,000.
- With this being said, you should not be worried about rejecting settlement offers that are not good enough. You deserve to get a good deal, and rejecting an offer isn’t automatically unreasonable - costs are only awarded very rarely.
Key point:
“Without prejudice save as to costs” is a way of protecting the settlement offer during the case but keeping it available as evidence later in cost arguments.
How Does This Affect Employment Tribunal Claims?
Understanding how “without prejudice” works is especially important if you’re considering or already involved in an employment tribunal.
Can without prejudice documents be used in evidence?
- Normally no — they are protected, meaning you or your employer cannot rely on them to prove your case.
- The tribunal’s focus will be on the “open” correspondence, such as grievance letters, dismissal letters, or official HR policies.
Exceptions where they may be used
- If the communication was not genuinely about settlement
- If it included discriminatory or harassing remarks
- If it was used to intimidate or pressure you unfairly
In these cases, the tribunal may decide to admit the evidence despite the label.
Impact on your claim
- Settlement discussions: These may take place alongside your tribunal claim. You can explore settlement “without prejudice” without weakening your case.
- Negotiation leverage: Employers often use without prejudice discussions to test whether you’re willing to settle. Knowing your rights helps you avoid being rushed into a poor deal.
- Costs risks: If a settlement offer is made “without prejudice save as to costs” and you reject it, you could face a costs order if the tribunal awards you less than what was offered. However, this only happens in rare cases, if it really was unreasonable for the claimant to have refused the offer.
Key takeaway: Without prejudice communications allow room for settlement talks, but they don’t stop your tribunal case from moving forward. You should always assess whether the offer or discussion is fair before making a decision.
Common Examples in the Workplace
Seeing how “without prejudice” works in real life can make it easier to understand. Here are some typical scenarios:
Example 1: Settlement offer letter
You raise a grievance about unfair treatment. A week later, HR sends you a letter headed “Without Prejudice”, offering you a financial settlement in exchange for leaving the company and agreeing not to pursue a tribunal claim.
Example 2: HR meeting
During a redundancy process, your employer invites you to a “without prejudice meeting.” In this meeting, they explore whether you’d consider a settlement package rather than continuing through formal redundancy procedures.
Example 3: Negotiating a reference
You’ve resigned but are pursuing a constructive dismissal claim. Your employer offers, on a without prejudice basis, to provide you with agreed financial terms and an agreed reference if you withdraw your claim.
Example 4: Misuse of the term
A manager makes offensive remarks in a meeting but later claims the conversation was “without prejudice.” Because the content wasn’t part of genuine settlement discussions, the label doesn’t apply — and the remarks could still be used as evidence.
Key takeaway: The “without prejudice” label can be a useful tool for confidential negotiations, but it doesn’t protect improper conduct or conversations that aren’t really about settlement.
What To Do If You Receive a ‘Without Prejudice’ Letter or Offer
Getting a letter or being invited to a “without prejudice” meeting can feel intimidating, especially if you’ve never dealt with one before. Here are some practical steps:
1. Don’t panic
Receiving a “without prejudice” communication doesn’t mean you’ve done anything wrong. It usually means your employer wants to explore settlement rather than letting the dispute drag on.
2. Remember it’s not binding
Just because you’ve been sent a letter or had a conversation doesn’t mean you have to accept any offer. You remain free to continue with your grievance or tribunal claim if the proposal isn’t fair. Also, if you want to you can respond with a counter-offer rather than a straight rejection.
3. Take time to consider
Don’t feel pressured to make a decision on the spot, even if your employer says the offer is “time limited.” You’re entitled to space to think things over.
4. Get advice before responding
A settlement agreement usually includes waiving your right to bring a tribunal claim, or withdrawing your claim if you have already made it. It’s important to understand the implications before signing anything.
5. Use Valla tools and support to strengthen your position
- Contact us by email at hello@valla.uk to discuss your situation - our team willand point you in the right direction.
- Review our without prejudice letter template for responding to offers.
- Consider legal coaching support to understand your rights.
- Gather your evidence so you can properly weigh up whether the offer is fair.
Key takeaway: A “without prejudice” letter or meeting is part of negotiation, not a final decision. Stay calm, seek advice, and don’t agree to anything you’re uncomfortable with.
Key Takeaways
- “Without prejudice” protects genuine settlement discussions from being used as evidence in an employment tribunal.
- It can apply to letters, emails, or meetings where both sides are trying to resolve a dispute.
- The rule has limits — it won’t cover discrimination, harassment, or bad faith behaviour.
- “Without prejudice save as to costs” allows an offer to remain hidden until the tribunal decides on costs.
- Receiving a “without prejudice” letter or offer is not binding — you can seek advice, take your time, and decide whether to accept.
- Tribunals look at context, not labels — misusing the phrase won’t make unlawful behaviour confidential.
Bottom line:
“Without prejudice” can be a helpful tool for confidential settlement talks, but you should always make sure you understand your rights before accepting or rejecting an offer.
Conclusion
The phrase “without prejudice” is an important part of UK employment law, designed to encourage open settlement talks in workplace disputes. While it can protect both employers and employees during negotiations, it’s not absolute — the context matters, and tribunals can still admit evidence if the rule is misused.
If you’ve received a “without prejudice” letter or been invited to such a meeting, the most important thing is to understand your rights before making any decisions. Settlement discussions can be an opportunity, but they can also be used unfairly if you don’t have the right guidance.