Without prejudice

Two words that let both sides talk settlement freely — because what is said in a genuine attempt to settle a dispute generally cannot be used against either of them at the hearing.

Does writing the words on a letter make it protected?

No. The label helps show intention, but protection depends on substance: there must be an existing dispute and a genuine attempt to settle it. A letter marked without prejudice that simply asserts a position, makes threats, or discusses day-to-day matters is not protected, and an unlabelled letter that genuinely negotiates settlement can be.

What is the difference between without prejudice and a protected conversation?

The without prejudice rule is a common law principle that needs an existing dispute. Section 111A of the Employment Rights Act 1996 goes further for one claim type: it lets employers and employees discuss ending employment on agreed terms confidentially even where no dispute exists yet. But section 111A confidentiality applies only to ordinary unfair dismissal claims — it does not cover discrimination, whistleblowing or automatically unfair dismissal claims.

Can I tell the tribunal my employer offered me money to leave?

Usually not, if the offer was made in genuine settlement negotiations about an existing dispute or in a valid protected conversation and your claim is ordinary unfair dismissal. But if your claim includes discrimination or whistleblowing, section 111A does not apply, and the offer may be admissible unless the common law without prejudice rule separately covers it.

Are there exceptions where protected discussions can be revealed?

Yes. The main one is unambiguous impropriety — the protection cannot be used as a cloak for blackmail, perjury or clearly improper conduct. For protected conversations under section 111A, improper behaviour such as harassment or undue pressure can also remove the protection. Courts apply these exceptions narrowly, so most robust negotiation stays protected.

What does without prejudice save as to costs mean?

It means the communication stays hidden from the judge while the case is decided, but can be shown afterwards when costs or expenses are considered. In civil litigation this is a common way to put settlement pressure on an opponent. In the employment tribunal costs awards are rarer, but the concept still appears in settlement correspondence.

Do without prejudice discussions pause my tribunal deadline?

No. Settlement talks have no effect on the time limit for presenting a claim, which for most employment tribunal claims is three months less one day from the act complained of, adjusted by ACAS Early Conciliation. Claimants sometimes negotiate past their deadline and lose the ability to claim — keep the clock in view throughout any negotiation.

Employment Tribunal · Glossary

Two words that let both sides talk settlement freely — because what is said in a genuine attempt to settle a dispute generally cannot be used against either of them at the hearing.

Last reviewed: August 2026

Employment Tribunal track

is the rule that statements made in a genuine attempt to settle an existing dispute cannot normally be put before the court or tribunal as evidence — so offers, concessions and admissions made in negotiation stay out of the hearing room.

Where this comes from

Rush & Tompkins Ltd v Greater London Council

[1989] AC 1280 — the House of Lords' statement of the modern rule and its public policy basis: encouraging parties to settle.

Employment Rights Act 1996, s.111A

— confidential pre-termination negotiations (“protected conversations”).

ACAS — settlement agreements

— including the Code of Practice on settlement agreements.

Most disputes settle, and the law wants them to. But nobody would make a sensible opening offer — “we would pay £8,000 to resolve this” — if that offer could later be read out at the hearing as an admission of weakness. The without prejudice rule removes that fear: communications made in a genuine attempt to settle an existing dispute are privileged, and neither side can rely on them as evidence if the negotiation fails.

The protection covers the substance of negotiations — letters, emails, meetings, phone calls — whether or not anyone typed the magic words at the top. Equally, the label alone protects nothing: a threatening letter or an ordinary management instruction does not become invisible because someone stamped it without prejudice. Tribunals look at what the communication really was.

In practice, parties who negotiate while litigating run two parallel channels. Open correspondence — the claim, the response, case management letters — is written knowing the tribunal may read it. Without prejudice correspondence carries the settlement discussion. Keeping the two strictly separate matters: mixing an offer into an open letter can expose it, and burying case-critical facts in a without prejudice letter does not stop those facts being proved by other evidence. A tidy separation protects both the negotiation and the case.

When protection applies — and when it does not

• An existing dispute.
• The common law rule needs a dispute in being — a grievance, a threatened claim, a clear disagreement heading for litigation. Talks before any dispute exists fall outside it.
• A genuine attempt to settle.
• The communication must be part of real negotiation — offers, counter-offers, concessions — not position statements or warnings dressed up as negotiation.
• Protected conversations fill the gap.
• Section 111A of the Employment Rights Act 1996 lets either side propose ending employment on agreed terms confidentially
• even with no existing dispute
• — but that statutory confidentiality applies only to ordinary unfair dismissal claims.
• Protection is lost for unambiguous impropriety — blackmail, perjury, clearly improper threats — and, for s.111A, where there is improper behaviour such as undue pressure. These are narrow doors, not general escape hatches.

How it works in practice

An employee raises a grievance about being sidelined after returning from sick leave and mentions feeling forced towards resignation. Her employer invites her to a “without prejudice” meeting and offers £9,000 plus an agreed reference to leave under a settlement agreement.

Claim she later brings

constructive unfair dismissal

Existing dispute at the meeting?

Genuine settlement attempt?

Offer admissible at the hearing?

She declines, resigns, and claims constructive

. She cannot tell the tribunal about the £9,000 offer — and the employer cannot use anything she conceded in the meeting either. Had her claim included disability discrimination, section 111A would not have covered the discussion, and whether the common law rule protected it would depend on the dispute and the genuineness of the negotiation — a distinction that decides real cases.

Common misconceptions

• “The label makes it privileged.”
• Substance governs. Courts have repeatedly admitted mislabelled letters and protected unlabelled ones.
• “Everything in the meeting disappears.”
• The underlying facts do not become privileged because they were mentioned in negotiation. A fact provable by other evidence can still be proved by that other evidence.
• “Protected conversations cover every claim.”
• Section 111A is limited to ordinary unfair dismissal. Discrimination, whistleblowing and automatically unfair dismissal claims sit outside it — a point employers sometimes learn the hard way.
• “Negotiating pauses the deadline.”
• time limit runs through every negotiation, adjusted only by

Frequently asked questions

Sources & further reading

• Employment Rights Act 1996, section 111A
• (legislation.gov.uk)
• Settlement agreements
• Employment tribunals
• Rush & Tompkins Ltd v Greater London Council

Weighing a settlement offer against a claim?

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Last reviewed: August 2026.

References checked against the Employment Rights Act 1996 as in force on 3 August 2026.

This page is explanatory only and is not legal advice. Start My Claim is self-service software, not a law firm — its tools help you build and run your own case.