At Lincs Law Employment Solicitors, we have seen a rise in clients heading their documents and correspondence to their employers as being “Without Prejudice”. Whilst it is important that some documents are marked in this way, unfortunately, the phrase is often misused. For further information about when documents should be marked with “Without Prejudice” please read on.
What Is Without Prejudice?
If a claim is brought in the Employment Tribunal, you are generally able to rely on any correspondence or communication sent between you and your employer as evidence to support your case. However, concern about the future use of a document can have a negative effect on attempts to negotiate and settle the dispute. The concern for both parties will be that any offers or concessions made might prejudice their case at an Employment Tribunal at a later date.
Therefore, the idea of “Without Prejudice” is to encourage open and sincere negotiation between the parties. If a document or discussion is marked or agreed to be “Without Prejudice” then it should be classed as part of the negotiation process. As such, it should not be brought to the attention of the Employment Tribunal in the future (without the consent of the writer). This means that all sorts of agreements, concessions and acknowledgements can be made in “Without Prejudice” correspondence without the fear that those comments would create difficulties for the writer’s claim or defence in any future Employment Tribunal proceedings.
When Should Correspondence Or Meetings Not Be Without Prejudice?
At Lincs Law Employment Solicitors, we are finding it increasingly common that employees are marking any and all correspondence with their employer as “Without Prejudice”. This practice should be avoided as in the event they wanted to rely on that correspondence at the Employment Tribunal, there may be confusion as to its status and whether it could be relied upon.
By way of assistance, all grievance letters; disciplinary statements; and appeal statements should never be marked as without prejudice. For an employee, these documents are important evidence which show that you have a longstanding issue with your employer. It also shows that you have followed the correct procedure in addressing these concerns with your employer.
Similarly, this applies to general back and forth correspondence between an employee and employer. Unless you are negotiating a settlement offer, general correspondence should not be marked as “Without Prejudice”.
When Should Correspondence Or Meetings Be Without Prejudice?
Any genuine negotiation document should be marked as Without Prejudice. For example:
- A Settlement Agreement that has not yet been signed;
- Any correspondence which is negotiating a Settlement Agreement;
- Correspondence in which one party is putting forward an offer to settle a claim; or,
- Correspondence in which an offer is being rejected or a counteroffer put forward.
There does need to be a genuine dispute which requires negotiation for you to mark correspondence as Without Prejudice. If a claim has already been initiated in the Employment Tribunal or you have raised a grievance, this will clearly show that there is a genuine dispute which is being negotiated.
Other Points to Consider
Employees must be careful about taking action upon receiving Without Prejudice correspondence (or after having a protected conversation please see https://lincslaw.co.uk/blog/protected-conversations-with-your-employer-prepare-prepare-prepare). For example, an Employee who wishes to bring a claim for Constructive Dismissal may face problems if they handed in their resignation because they received a Without Prejudice statement from their Employer concerning their conduct. This type of scenario could be risky for an Employee as they would be unable to use or mention the statement in their evidence to support their constructive dismissal claim.
Lincs Law Employment Solicitors Can Help You
If you have an employment law issue, please contact us on 01522 440512 for a free, no obligation telephone consultation. For more information on the full range of employment law issues Lincs Law can assist you with, please visit our website at https://lincslaw.co.uk/services/employees/
Specialist Employment Law Solicitor
Lincs Law Employment Solicitors