Without prejudice: what it means and when it applies

What does without prejudice mean?

Without prejudice is a legal rule, a form of privilege, that protects genuine attempts to settle an existing dispute. Communications made or marked "without prejudice", whether letters, emails or meetings, generally cannot be shown to a court or tribunal as evidence of what was said. The label alone does not decide it: what matters is whether there was a real dispute and a genuine attempt to settle it.

The idea behind the rule is simple. People should be free to make concessions and put forward offers to resolve a disagreement without those offers later being used against them as an admission if talks break down. Without that protection, nobody would ever put forward a compromise, and far fewer disputes would settle without a hearing.

When does without prejudice apply?

It applies once there is an existing dispute and the communication is a genuine attempt to resolve it. Marking something "without prejudice" before any dispute exists does not automatically create the protection. Courts look at substance over labelling, so a letter headed "without prejudice" that makes threats or contains no real settlement offer may not be protected at all.

Two points matter in practice. First, there has to be something to dispute, an actual disagreement about facts, rights or entitlements, not just a difficult conversation. Second, the protection is not absolute: it can be lost where a communication involves fraud, blackmail, or what the courts call "unambiguous impropriety". Those exceptions are narrow and rarely apply to ordinary settlement talks.

What is a without prejudice conversation or letter at work?

It is a settlement discussion your employer opens, often before any formal dispute, to explore an exit on agreed terms without those terms being used against either side later. Employers frequently combine this with a "protected conversation". You are not obliged to agree to anything on the spot, and it is worth getting advice before you respond.

In practice this usually means a meeting, or a letter, in which your employer proposes that you leave in return for a payment, set out in a settlement agreement. Take time before you reply. You do not have to accept the first figure, and you are entitled to independent legal advice, which your employer normally pays for, before you sign anything. See our guide on negotiating a settlement agreement for how to approach the figures.

What does without prejudice save as to costs mean?

This is a Calderbank offer. The communication stays protected while the case is being decided, so it cannot be used as evidence of liability. But once the tribunal or court has ruled, either side can show the offer when the question of who pays the costs is decided, because an unreasonable refusal to accept a fair offer can affect a costs award.

The practical effect is a form of leverage. It lets a party put forward a serious settlement figure and, if the other side rejects it and then does worse at trial or hearing than the offer, point to the offer afterwards on costs. This is more common in civil litigation than in employment tribunals, where costs orders are the exception rather than the rule, but the same "save as to costs" wording does appear in employment correspondence. See our full guide on without prejudice save as to costs for how the label differs from a plain without prejudice communication and from a protected conversation.

Without prejudice vs a protected conversation: what is the difference?

Without prejudice needs an existing dispute to bite. A protected conversation under section 111A of the Employment Rights Act 1996 does not: it can cover settlement talks about ending your employment even where there is no dispute yet, but it only protects against an ordinary unfair dismissal claim, not other claims such as discrimination or automatic unfair dismissal.

This gap matters. If your employer opens a conversation purely as "protected" and there was no dispute beforehand, the content can still be referred to in a discrimination or whistleblowing claim, because section 111A does not reach those claims and without prejudice was never engaged in the first place. Employers often invoke both protections together for this reason. Read the full comparison in our guide on protected conversations.

What happens if a without prejudice conversation goes wrong?

The protection is lost, and the communication becomes admissible after all, where a party's conduct crosses into fraud, blackmail, or what the courts call "unambiguous impropriety". This is a high bar: it is not enough that a comment was unwise or embarrassing, the impropriety has to be clear and serious, such as an outright threat unconnected to any genuine settlement offer.

Because the exception is narrow, tribunals rarely let ordinary hard bargaining through it. If you think something said to you crossed that line, for example a threat with no basis at all rather than a candid view on the merits, get advice before assuming either it is automatically inadmissible or automatically usable.

My employer made a settlement offer during my grievance, is it protected?

Usually yes for an ordinary unfair dismissal claim: a live grievance is itself a dispute, so a genuine offer to settle it made during or after that process can attract without prejudice protection. But neither without prejudice nor a section 111A protected conversation stops the offer being used as evidence in a discrimination or automatic unfair dismissal claim, so if your grievance raises either of those, the offer is not shielded from them.

This trips people up because the two protections sound total. They are not: they cover the ordinary unfair dismissal claim only, and a grievance about, say, disability discrimination or whistleblowing sits outside both. See our protected conversation guide for how the grievance point plays out from that side.

Does "dismissal without prejudice" mean the same thing here?

No. "Dismissal without prejudice" is a US civil procedure term: a case dismissed without prejudice can be refiled later, while one dismissed with prejudice cannot. It is unrelated to UK employment law and has nothing to do with the without prejudice rule on this page.

If you searched this after a UK redundancy, dismissal or settlement discussion, the phrase you want is almost certainly a "without prejudice" settlement conversation, covered above, or the related protected conversation your employer may have opened alongside it.

Without prejudice: frequently asked questions