Without prejudice and pre-termination negotiations in employment
Without prejudice and pre-termination negotiations in employment

The following Employment guidance note provides comprehensive and up to date legal information covering:

  • Without prejudice and pre-termination negotiations in employment
  • The without prejudice rule
  • Without prejudice rule: when the rule applies
  • Without prejudice rule: principles
  • Termination of employment under the guise of a without prejudice discussion
  • Without prejudice rule: exceptions
  • Without prejudice rule: inadmissible 'save as to costs'
  • Legal professional privilege
  • For further information, see:
  • Communications with Acas conciliation officer
  • more

From time to time, an employer may wish to commence negotiations with an employee (or vice versa) to settle a dispute or agree terms of the employee's departure. The starting point is that evidence of any such negotiations is admissible in any subsequent litigation. However, there are two possible ways in which the confidentiality of negotiations may be protected:

  1. under the without prejudice rule

  2. under the rule regarding 'pre-termination negotiations' (section 111A of the Employment Rights Act 1996), sometimes referred to as 'protected conversations', which applies only in respect of ordinary unfair dismissal claims

Under the without prejudice rule, communications are inadmissible as evidence and cannot be made the subject of a disclosure order.

Similarly, the rule regarding pre-termination negotiations renders evidence of negotiations inadmissible, but only in specified circumstances. The two rules differ in:

  1. the circumstances in which each rule will apply:

    1. the without prejudice rule can apply only where the parties are already in dispute, whereas

    2. there need not be an existing dispute in order for the rule regarding pre-termination negotiations to apply; rather, it applies to any offer made, or discussions held, before termination of employment, with a view to the employment being terminated on terms agreed between the employer and the employee

  2. the type of litigation in which inadmissibility by virtue of each rule will apply:

    1. the without