What Is a Without Prejudice Conversation?

A without prejudice conversation is an off-the-record discussion between an employer and an employee. This means the details of the conversation cannot be disclosed to a court or tribunal. Such conversations often occur when discussing settlement agreements or resolving disputes confidentially.

Employers may also refer to this as a protected conversation. These meetings are separate from any formal procedures being followed for the employee.

Why Use a Without Prejudice Conversation?

The main purpose of a without prejudice discussion is to encourage honest negotiation. The employer and employee can talk openly about settlement terms without fear that their words will be used against them later.

If you have questions about these conversations, seek advice from a settlement agreement lawyer to understand your rights.

Key Legal Principles

  • What does “without prejudice” mean?: The term “without prejudice” comes from common law and means that anything said in genuine efforts to settle a dispute cannot be used as evidence in court.
  • There must be a dispute already: For a conversation to be “without prejudice,” there needs to be an existing disagreement or conflict between the parties. if there’s no dispute, the conversation won’t be protected.
  • State it clearly: At the beginning of the conversation, it’s important to say it is “without prejudice.” this makes sure both sides know the discussion is protected by this rule.
  • When the rule doesn’t apply: In rare cases, the rule doesn’t protect the conversation. This happens if someone has been dishonest or used pressure, fraud, or lies during the discussion.

Tips for Employers Conducting a Without Prejudice Meeting

When holding a without prejudice meeting, employers must follow these key principles:

  • Avoid Threats of Dismissal: Employers should never threaten dismissal during a without prejudice discussion. Doing so is considered bad faith and may invalidate the protection of the conversation.
  • Offer Clear Choices: Always provide the employee with an option. They should be able to choose between accepting a settlement agreement or following a formal internal process.
  • Remain Professional: Keep the tone respectful and constructive. This ensures the conversation stays productive and reduces the risk of disputes.
  • Document the Context: Clearly state the reason for the without prejudice meeting and ensure it aligns with the rules for protected conversations.

Settlement Agreements: The Outcome of Without Prejudice Discussions

A settlement agreement is often the result of a without prejudice conversation. This formal document outlines the terms agreed upon during the discussion. Common terms include:

  • A waiver of future claims against the employer.
  • Confidentiality clauses prevent the employee from disclosing details of the settlement. 

By signing the agreement, the employee waives their right to bring future claims in exchange for compensation or other benefits.

Risks of Failing to Follow Best Practices

If an employer fails to meet these standards, the without prejudice conversation may lose its protection. For example:

  • Threatening dismissal can be seen as bad faith.
  • Failing to offer a clear choice could lead to claims of unfair treatment.
  • A lack of professionalism might invalidate the conversation, making it “on the record.”

If the conversation is deemed on the record, it can be referred to in court or tribunal proceedings.

Without Prejudice Conversation Tips for Employees

For employees, it is crucial to understand your rights in a without prejudice discussion:

  • You are not obligated to accept a settlement agreement.
  • You have the right to seek independent legal advice before signing anything.
  • Ask for written confirmation of the terms being discussed.
  • If the tone becomes threatening, you may challenge the validity of the conversation.

Get Legal Advice

Whether you are an employer or an employee, understanding without prejudice conversations can protect your interests. Employers should ensure they follow best practices to avoid legal risks. Employees should seek guidance if unsure about the terms discussed.

Speak to our settlement agreement lawyers here at DPH Legal if you need tailored advice about without prejudice meetings or agreements.

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