Without prejudice: what it means

“Without prejudice” means that what is said in a genuine attempt to settle a dispute cannot later be used as evidence. It is one of the most used phrases in any dispute and one of the least understood — mainly because people believe the words themselves do the work. They do not.

The labels, and what each one actually does

Six things get called some version of “off the record” in a dispute. Only some of them protect anything.

What without prejudice means

The clearest statement of the rule in an official source is in the Acas Code of Practice on settlement agreements, which describes it in its own words.

Common law, not statute

The Code is explicit that this is a common-law principle — non-statutory. It comes from judges, not from Parliament, which is why you will not find a section number for it. What Parliament added later is a separate statutory rule for employment, described further down.

Written and spoken

It covers statements written or oral. A meeting, a phone call and an email can all be without prejudice. What they have in common is not the medium but the purpose: a genuine attempt to settle.

What “cannot be put before a court or tribunal” means in practice

If the attempt to settle fails and the dispute goes to a hearing, the concessions made while trying to settle cannot be used as evidence that you admitted something. That is the point of the rule: it lets people make offers and concessions without those offers becoming weapons.

Why the label alone does nothing

This is the single most common misunderstanding, and the Acas Code addresses it directly.

No existing dispute, no protection

If there is no dispute when the conversation happens — if, for example, the first you knew of any problem was the meeting in which your employer raised a settlement — the without-prejudice rule has nothing to attach to. Heading the letter with the words does not change that.

Not a genuine attempt to settle

The protection covers statements made in a genuine attempt to settle. A letter headed without prejudice that contains a threat, or a statement of fact with no offer attached, is not obviously part of an attempt to settle, and the heading does not make it one.

Marking letters and emails

Marking correspondence “without prejudice” is still worth doing when you genuinely are trying to settle a real dispute, because it makes the intention clear. It is a signal, not a spell. Keep facts you want on the record in open correspondence, and keep the protected discussion to the settlement itself.

When the protection falls away

Even where the rule applies, it is not absolute.

Unambiguous impropriety

The Code names the exception: fraud, undue influence or some other ‘unambiguous impropriety’ such as perjury or blackmail. A without-prejudice label cannot be used to hide a threat or a lie.

The statutory version is broader

The employment-specific statutory rule has its own exception, and it reaches further.

Note the remedy: it is a dial rather than a switch. Where there has been improper behaviour, the tribunal admits as much of the negotiation as it considers just — the Acas Code says the same thing in its own words at paragraph 8. Giving someone too little time to consider an offer is capable of being improper, which is why the Acas ten-day recommendation matters.

Without prejudice save as to costs

This is the variant with a reservation attached, and it is searched for almost as often as the phrase itself.

What the reservation does

An offer marked without prejudice save as to costs is protected on the question of who wins. But the person making it reserves the right to show it later on the separate question of who pays the legal costs — typically to argue that the other side should have accepted it.

In the employment regime

The statutory protected-conversation rule preserves exactly this reservation.

In the civil courts

The county court and High Court in England and Wales work under the Civil Procedure Rules, which tell the court what to consider when deciding costs.

Note the scope carefully. The Civil Procedure Rules govern the civil courts, not the employment tribunal, and they extend to England and Wales. They matter to a settlement agreement mainly if the agreement itself later has to be enforced in court — for example if the money is not paid.

Without prejudice in an employment dispute

This is where most people meet the phrase: a meeting about leaving, or a letter setting out an offer.

Two rules running side by side

The Acas Code describes the statutory protected-conversation rule in section 111A as running alongside the without-prejudice principle. They overlap but they are not the same. Section 111A needs no existing dispute, but it only protects against an ordinary unfair dismissal claim.

The Code’s own list of what section 111A does not cover:

The gap between them

Put the two together and a gap appears: a discrimination or whistleblowing issue, raised for the first time in a settlement conversation with no existing dispute, may be protected by neither. The two rules compared in detail, and what the gap means for a negotiation · what changes when discrimination is in play.

The agreement is a separate question

Whether a conversation was protected says nothing about whether the settlement agreement that comes out of it binds you. That depends on the six conditions in ERA 1996 s.203(3). What a settlement agreement is, and what else it gets called · what it contains.

Common questions