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.
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.
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 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.
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.
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.
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
Why it matters in employment cases
Example scenario
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.
Understanding how “without prejudice” works is especially important if you’re considering or already involved in an employment tribunal.
In these cases, the tribunal may decide to admit the evidence despite the label.
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.
Seeing how “without prejudice” works in real life can make it easier to understand. Here are some typical scenarios:
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.
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.
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.
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.
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:
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.
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.
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.
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.
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.
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.
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.