Understanding the Power of Without Prejudice Offers in Employment Law

During a legal battle, a party’s admission to something can be used against them in court. However, by using the without prejudice rule for any offers, you can make statements and offers that can’t be used in court as evidence of admissions against the party who made them. Whether you’re battling unfair dismissal, employment contract disputes, or employment tribunals, without prejudice can be used. In this blog post, we’ll dive deeper into what a without prejudice offer is, how it works, and the exemptions to the rule.

What Is a Without Prejudice Offer?

In employment law, without prejudice offers serve as a way for parties involved in a dispute to explore settlement options without fear of their statements being used against them in court. These offers provide a safe space for open discussions, encouraging everyone involved to negotiate honestly and confidentially.

How Does Without Prejudice Work?

A without prejudice offer can be made verbally or in writing, but it’s most commonly used in a letter or email to the opposing party. when making a without prejudice offer, it’s important to clearly mark it as such. This way, everyone knows it’s meant for settlement talks, not as ammo in court. By using the ‘without prejudice’ label, parties show they want to resolve things amicably and focus on finding solutions.

A without prejudice offer can be sent by any party at any time and doesn’t need to be through a lawyer. However, it’s important to make it very clear to the other party that you are sending it on a without prejudice basis by clearly marking it as such. There are no rules when it comes to adding this to a letter, email, or conversation, but it’s best to mention it as soon as possible. In letters or email, adding it to the subject line can instantly make it clear, and in discussions, it’s best to mention it rifht at the outset.

Benefits of Without Prejudice Offers

Getting Things Settled

Without prejudice offers create an environment where open and honest discussions can thrive and making settlements is more likely to happen. Each party can voice their concerns and explore different options without worrying about damaging their legal positions.

Saving Time and Money

Engaging in negotiations through the without prejudice rule can save a ton of money and time compared to legal court battles. Parties can actively pursue resolutions that best suit their interests, potentially avoiding expensive and drawn-out legal proceedings.

Keeping Relationships Intact

During employment disputes, preserving relationships can be crucial, especially when ongoing collaboration or an amicable parting is wanted. Without prejudice offers allow for respectful dialogues, reducing hostility, and maintaining professional connections.

Exceptions to The Without Prejudice Rule

Whilst the without prejudice rule provides a valuable shield for open negotiations, there are some exceptions to the rule. These exceptions limit the protection offered by without prejudice communications in specific circumstances.

  • If a party makes threats, engages in fraudulent behaviour, or uses coercion during negotiations. If this happens, the court may allow such evidence to be admitted to prevent injustice or hold parties accountable.
  • If there is a disagreement about whether a settlement agreement has been reached between the parties, the without prejudice privilege may be set aside. In these cases, the court can consider the without prejudice communications to determine the existence or terms of a potential settlement.
  • If the parties have reached a final and binding settlement agreement. Once the terms are agreed on and properly documented, the privilege no longer applies to those specific terms.
  • If a statement made during the without prejudice negotiations could create an estoppel, meaning it could prevent a party from going back on their word or claim, the court may consider such statements as admissible evidence.
  • In cases where the reasonableness of a settlement is in question, the without prejudice privilege may be lifted. The court can consider the without prejudice communications to assess whether the proposed settlement is fair and reasonable in the circumstances.

Understanding these exceptions can help parties navigate the negotiation process effectively and avoid any potential pitfalls.


While a without prejudice offer is great opportunity to discuss settlements, it’s important to understand their limits. Embracing this approach correctly allows parties to engage in constructive negotiations which can lead to positive outcomes for all.

At 365 Employment Law, we’re here to arm you with the knowledge needed to navigate employment law with confidence! Get in touch with us for any employment law matters now.

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