Without Prejudice & Protected Conversations

Employers often call meetings "without prejudice"—but the rules are more nuanced than that. Know when this protection applies and when it doesn't.

If my employer calls a redundancy meeting 'without prejudice', is it automatically protected?

Not automatically. Without prejudice (WP) only applies if: (1) a genuine dispute already exists (not a pre-termination negotiation), and (2) the communication is a genuine attempt to settle that dispute. Calling a first meeting 'WP' where you're told your job is at risk does NOT automatically protect it—there's no dispute yet. The label alone does not matter; the facts do.

Can I share a without prejudice letter with my solicitor?

Yes. Sharing a WP communication with a lawyer or adviser for legal advice does not waive the privilege. However, sharing it publicly or with a third party for purposes other than legal advice may waive it. Always tell your adviser that the communication was marked WP so they understand the context.

What is the difference between 'without prejudice' and s.111A protected conversations?

WP requires a pre-existing dispute. s.111A (introduced 2013) allows an employer to have a 'pre-termination negotiation' about ending employment WITHOUT a pre-existing dispute—as long as it remains confidential and follows the statutory procedure. Both make the conversation inadmissible, but s.111A is broader. However, s.111A does NOT protect against discrimination or automatic unfair dismissal claims.

How much time should I take to consider an offer made in a WP meeting?

There is no fixed period, but 7–28 days is generally considered reasonable depending on the complexity of the offer. The tribunal will assess what was reasonable in the circumstances. If the employer pressures you to decide immediately or gives unreasonably short notice, that may amount to improper conduct that loses the WP protection.

What happens if my employer withdraws a without prejudice offer after I've accepted it?

Once accepted, a WP offer typically becomes a binding agreement (unless the terms say otherwise). Withdrawal after acceptance may breach the agreement. However, if the offer was conditional (eg. 'subject to agreed reference'), failure to meet that condition allows withdrawal. If you believe withdrawal is a breach, seek legal advice immediately.

Are without prejudice conversations protected for discrimination claims?

No. WP is a settlement privilege—it does not protect communications in discrimination claims. Statements of fact made during a WP discussion about discrimination can be used as evidence in a discrimination tribunal claim. For example, if an employer admits discriminatory conduct WP, that admission may be admissible if the claimant can show the statement is direct evidence of the discrimination (not just settlement posturing).

Can I record a without prejudice meeting?

Legally, you can record (in most circumstances, depending on consent laws in your jurisdiction). However, recording a WP meeting and using the recording to waive WP privilege is ethically questionable and may amount to bad faith. If you have serious concerns about what is said, attend with a witness or adviser rather than record. Do not attempt to record secretly.

Without Prejudice & Protected Conversations

conduct = no protection

What "Without Prejudice" Means

Communications made as part of a genuine attempt to settle an existing legal dispute cannot be used as evidence in court or tribunal. Both sides can speak freely without fear that their statements will be held against them later.

For WP protection to apply, TWO conditions must be met:

1. A genuine dispute must already exist.

There must be a legal dispute between the parties before the WP communication is made. A first conversation telling an employee their job is at risk is NOT "without prejudice" because no dispute has crystallised yet.

2. The communication must be a genuine attempt to settle that dispute.

The parties must be genuinely trying to resolve the dispute. If one side is just using "WP" as a cover to pressure the other without intent to settle, or to gather evidence, it may not be protected.

What Without Prejudice Does NOT Cover

First conversations about job risk:

A first meeting telling an employee their job is at risk or may be terminated is NOT WP. No dispute exists yet. Only subsequent communications attempting to settle become WP.

Using it as a shield after the fact:

An employer cannot label a meeting "WP" retrospectively (eg. "That meeting was WP") to protect statements already made. The protection must be agreed or clearly communicated before the discussion.

Covering unlawful conduct:

WP cannot shield discriminatory statements, harassment, or abuse. If an employer makes discriminatory comments and claims WP protection, those statements may still be admissible as evidence of discrimination.

Settlements that involve illegality:

A WP settlement that requires silence about illegality (eg. a discrimination cover-up) is not enforceable. The agreement cannot prevent you from reporting unlawful conduct to regulators.

Section 111A Protected Conversations

Section 111A of the Employment Rights Act 1996 (introduced 2013) allows an employer to have a confidential conversation about ending employment WITHOUT a pre-existing dispute.

This is called a "pre-termination negotiation." The employer can approach an employee, discuss redundancy, dismissal, or settlement, and the conversation is inadmissible in an unfair dismissal claim. This is broader than WP because it doesn't require a dispute to already exist.

However, s.111A has important limits:

s.111A ONLY protects against unfair dismissal claims. It does NOT protect against discrimination claims, automatic unfair dismissal (eg. whistleblowing, maternity), breach of contract, or wrongful dismissal.

The conversation must be confidential and genuinely about settlement. The employer must not engage in improper conduct.

If the employer behaves improperly—harassment, bullying, undue pressure, refusal to allow legal advice, threatened dismissal if offer refused—the protection is lost and the conversation becomes admissible.

Improper Conduct: When Protection Is Lost

Both WP and s.111A protection can be lost if the employer engages in "improper conduct." This includes:

Harassment or bullying:

Aggressive, threatening, or abusive language during the conversation.

Pressuring you to decide immediately, not giving reasonable time to consider, refusing to put the offer in writing.

Preventing legal advice:

Not allowing you to take independent legal advice or threatening dismissal if you consult a solicitor.

Threatened dismissal:

Saying "If you don't accept this offer, you'll be dismissed" (as opposed to explaining that termination may follow).

Making false statements:

Knowingly misrepresenting facts or the strength of the employer's case.

If you can show improper conduct, the WP/s.111A protection is lifted and the conversation becomes admissible evidence. This can be crucial in proving unfair dismissal or discrimination.

What to Do If Called to a Without Prejudice Meeting

Ask in advance whether the meeting will be WP.

Contact the employer beforehand and ask for written confirmation that the meeting is without prejudice and what the purpose is (settlement discussion, redundancy consultation, etc.).

Ask for time to take legal advice.

You have a right to consider the offer carefully. Ask for at least 7 days (more for complex cases). Do not be pressured into deciding on the spot.

Ask for the offer in writing.

Do not rely on verbal offers. Ask the employer to put the terms of any settlement offer in writing so you can review them and share with a solicitor.

Take independent legal advice.

Consult a solicitor or free employment law clinic before accepting any offer. This protects your interests and prevents later regrets.

Consider taking a witness or adviser to the meeting.

You can ask to bring a friend, family member, or representative to the meeting. Their presence helps if a dispute later arises about what was said.

You do not have to accept.

A WP meeting is not an obligation to settle. You can listen to the offer and decline. Declining does not put you at risk of costs simply because you rejected a settlement attempt.

Without Prejudice Save as to Costs (Calderbank Offers)

A "Calderbank offer" (or WP save as to costs) is an offer made WP on liability but which CAN be referred to in a costs argument.

If you refuse a reasonable Calderbank offer and later lose your case (or achieve a worse outcome), the tribunal may hold this against you on costs. For example, if an employer offers £10,000 WP and you refuse it, then lose at trial and are awarded only £5,000, the employer can argue you should pay their additional costs from trial.

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Employment Rights Act 1996

GOV.UK Employment Tribunals