Without Prejudice Meaning: What It Means for You at Work
This article applies to England, Wales and Scotland.
In brief: "Without prejudice" means that settlement discussions between you and your employer cannot normally be used as evidence in an employment tribunal. It protects both sides so you can negotiate openly. The rule only applies when there is a genuine dispute and a real attempt to settle it. Simply writing "without prejudice" on a letter does not guarantee protection.
Last updated: February 2026
If your employer has sent you a letter or invited you to a meeting marked "without prejudice," you are probably wondering what it means for you and whether you should be worried. It can feel intimidating, but this is actually a tool designed to help both sides talk openly about resolving a dispute. Thousands of employment disputes are settled this way every year, often with better outcomes than going to tribunal.
This guide explains what "without prejudice" means in plain English, when it applies, when it does not, and what you should do if your employer uses it.
What Does "Without Prejudice" Mean?
Without prejudice is a legal rule that prevents settlement discussions from being used as evidence in court or tribunal proceedings. In plain terms, it means "off the record."
The rule exists under common law to encourage honest negotiation. The idea is simple: if both sides know that what they say during settlement talks cannot be held against them later, they are more likely to speak frankly and reach an agreement.
For example, if your employer offers you £10,000 to leave during a without prejudice conversation, neither side can later tell a tribunal about that offer. The employer cannot say "they were willing to accept £10,000, so their claim must be weak." And you cannot say "they offered £10,000, which proves they knew they were in the wrong."
According to ACAS, the without prejudice rule applies to both written communications (letters, emails) and verbal discussions (meetings, phone calls).
When Does the Without Prejudice Rule Apply?
Two conditions must be met for the rule to apply:
1. There must be a genuine dispute. The parties need to be in disagreement about something. This does not mean you need to have filed a tribunal claim already, but there must be a recognisable conflict. A grievance you have raised, a disciplinary process, or a disagreement about your treatment at work could all count.
2. There must be a genuine attempt to settle. The communication must actually be trying to resolve the dispute, not just stating allegations or making threats. A letter that only sets out complaints without proposing any resolution may not qualify, even if it says "without prejudice" at the top.
This is an important point: simply labelling a document "without prejudice" does not automatically give it protection. Tribunals look at the substance of what was said, not just the heading.
Without Prejudice vs Protected Conversation
These two concepts are often confused. They overlap but are not the same thing.
| Without Prejudice | Protected Conversation | |
|---|---|---|
| Legal basis | Common law (case law) | Section 111A, Employment Rights Act 1996 |
| Requires existing dispute? | Yes | No |
| Covers which claims? | All types (unfair dismissal, discrimination, breach of contract) | Ordinary unfair dismissal only |
| Covers discrimination claims? | Yes | No |
| Covers whistleblowing claims? | Yes | No |
| When is it used? | During negotiations to settle a dispute | When an employer wants to discuss termination before any dispute arises |
A protected conversation under s.111A of the Employment Rights Act 1996 allows your employer to have a conversation about ending your employment, even if there is no dispute yet. The catch is that this protection only covers ordinary unfair dismissal claims. If you later bring a discrimination or whistleblowing claim, the contents of that conversation could potentially be used as evidence.
The two protections are not mutually exclusive. In practice, employers and employees often use both together. Your employer may open a discussion that is both "without prejudice" (because a dispute exists) and a "protected conversation" (as a belt-and-braces approach). ACAS recommends this dual approach in its Code of Practice on Settlement Agreements.
What Does "Without Prejudice Save as to Costs" Mean?
You may see this longer phrase on correspondence from your employer or their solicitor. It sounds intimidating, but the practical effect is limited.
"Without prejudice save as to costs" means the communication stays off the record during the case itself, but can be shown to the tribunal afterwards if there is a dispute about who should pay legal costs.
In practice, this is less alarming than it sounds. Employment tribunals operate on the principle that each side pays their own costs. Costs orders against employees are rare and typically only happen where a claim was vexatious or had no reasonable prospect of success. The fact that a letter is marked "save as to costs" does not mean you will be ordered to pay costs if you reject the offer.
That said, if your employer makes a reasonable offer and you reject it, then win less at tribunal than what was offered, the employer could use the letter to argue you acted unreasonably. Even then, tribunals consider your ability to pay before making any costs order.
What Does "Subject to Contract" Mean?
Another phrase you may see alongside "without prejudice" is "subject to contract." This means that even if you agree to the terms being discussed, nothing is legally binding until a formal written agreement (usually a settlement agreement) is signed by both parties.
This protects you too. It means you can discuss figures and terms without being locked in. You can change your mind, counter-offer, or walk away from negotiations without legal consequences until you sign.
When Can Without Prejudice Protection Be Lost?
The protection is strong, but not absolute. A tribunal may allow without prejudice material to be used as evidence in certain situations:
Unambiguous impropriety. If your employer used the without prejudice discussion to discriminate against you, harass you, or put you under improper pressure, the protection may be removed. For example, if your employer threatened to fabricate a disciplinary case against you unless you accepted their offer, that conduct would not be shielded.
No genuine dispute. If there was no actual dispute at the time of the communication, the without prejudice label will not apply. An employer cannot simply put "without prejudice" on a letter making you a redundancy offer out of the blue and expect it to be protected (though it may qualify as a protected conversation for unfair dismissal purposes).
No genuine attempt to settle. If the communication is not really about settling a dispute but is being used for another purpose, such as to gather information or to put pressure on you, the protection may not apply.
Fraud or misrepresentation. If one side makes statements they know to be false during without prejudice discussions, the rule will not protect those statements.
What to Do If You Receive a Without Prejudice Letter
Receiving a "without prejudice" letter from your employer can feel unsettling, but it is a normal part of employment dispute resolution. Here are some practical steps:
Do not panic or rush. Under the ACAS Code of Practice on Settlement Agreements, you should be given at least 10 calendar days to consider any settlement proposal, unless both parties agree otherwise. If your employer pressures you to respond immediately, that could amount to improper pressure.
Read it carefully. Understand exactly what is being offered and what you would be giving up. A settlement agreement typically requires you to waive your right to bring tribunal claims in exchange for a payment.
Check the time limits. Make sure you understand your tribunal deadlines. Negotiations do not pause the clock. The standard deadline is currently 3 months minus 1 day from the act you are complaining about, though ACAS early conciliation can extend this. Under the Employment Rights Act 2025, this deadline is expected to increase to 6 months for most claims from October 2026.
Consider your position. Think about the strength of your case, what you could realistically achieve at tribunal, and whether the offer reflects that. You do not have to accept the first offer.
Keep records. Note the date you received the letter and any verbal discussions. Even though the content is "off the record," you should keep your own records for reference.
You can make a counter-offer. Without prejudice works both ways. You can respond with your own "without prejudice" proposal suggesting different terms.
Using Without Prejudice in Your Own Negotiations
You do not have to wait for your employer to initiate without prejudice discussions. If you are in a dispute with your employer, perhaps following a grievance or if you believe you have been treated unlawfully, you can write your own without prejudice letter proposing settlement terms.
Mark the letter clearly as "without prejudice and subject to contract." Set out briefly what the dispute is about, what you are seeking, and why. Keep the tone professional. The goal is to open a dialogue, not to make threats.
If you are unsure about how to value your claim or what terms to propose, you may want to consider seeking advice from a solicitor or using tools that can help you understand your position before entering negotiations.
Frequently Asked Questions
Does "without prejudice" mean I cannot talk about what happened?
No. "Without prejudice" only prevents the content from being used as evidence in legal proceedings. You are not bound by confidentiality unless you have separately agreed to it. However, it is generally sensible to keep negotiations private while they are ongoing.
Can my employer force me to have a without prejudice conversation?
No. Both sides must engage voluntarily. If you do not want to have the conversation, you can decline. However, declining may mean you miss the opportunity to negotiate a settlement.
What if my employer says something discriminatory during a without prejudice meeting?
The "without prejudice" protection does not cover discriminatory behaviour. If your employer makes comments related to a protected characteristic (age, race, sex, disability, etc.), those comments could potentially be used in a discrimination claim. This is one of the key exceptions to the rule.
Does without prejudice apply during ACAS early conciliation?
Yes. Discussions with ACAS during early conciliation are treated as confidential and without prejudice. What you say to the ACAS conciliator cannot normally be shared with the tribunal.
Can I record a without prejudice meeting?
This is a grey area. Covert recordings are not automatically inadmissible in tribunals, but making one without telling your employer could damage trust and your credibility. If you want to record a meeting, it is better to ask permission first.
Is a without prejudice offer the same as a settlement agreement?
No. A without prejudice offer is a proposal. A settlement agreement is a legally binding contract that requires you to take independent legal advice before signing. The without prejudice offer may lead to a settlement agreement, but the two are different things.
What if I have already resigned? Can without prejudice discussions still happen?
Yes. Without prejudice discussions can take place at any stage, including after your employment has ended, provided there is a dispute and a genuine attempt to resolve it.
Does the 10-day consideration period always apply?
The ACAS Code of Practice recommends a minimum of 10 calendar days to consider a settlement proposal, unless the parties agree otherwise. This is not a statutory requirement, but failing to allow adequate time could be seen as improper pressure, particularly if the employer is relying on the "protected conversation" provisions under s.111A.
Sources
- "Settlement agreements", ACAS, 2024 — https://www.acas.org.uk/settlement-agreements
- "Acas Code of Practice on Settlement Agreements (section 111A Employment Rights Act 1996)", ACAS — https://www.acas.org.uk/acas-code-of-practice-settlement-agreements
- Employment Rights Act 1996, Section 111A — https://www.legislation.gov.uk/ukpga/1996/18/section/111A
- "Dismissal: your rights", Gov.uk — https://www.gov.uk/dismissal/unfair-and-constructive-dismissal