Why do you write without prejudice on a letter?

 

Because labelling correspondence as without prejudice, subject to the necessary conditions being met, means the material cannot be included as evidence in Employment Tribunal proceedings, and is therefore confidential. The parties engage in without prejudice discussions in an attempt to resolve disputes before the outcome is determined by an Employment Tribunal.

This blog will explain why the without prejudice rules are important and how they can be used to achieve a positive outcome.

 

What are the purposes of the without prejudice rules?

1. Promoting Settlement

 

The parties in a dispute may believe that it is inevitable that the matter will end up being heard by an Employment Tribunal. This is not so. It is possible to engage in settlement discussions at any point until the outcome of the case is determined by an Employment Tribunal.  If settlement can be achieved, it is likely to be positive for the parties as well as reducing pressure on the Tribunal by making time available for those cases which cannot be settled.

2. Encouraging Candour

The rules enable the parties to communicate freely: to put forward settlement offers without being concerned that such correspondence could be used by the other side at some point in the future. This confidentiality encourages the parties to engage in the process and explore how the situation could be effectively resolved.

3. Reducing Litigation

Whether you are a Claimant (bringing a claim) or a Respondent (defending the claim), and depending on the particular circumstances, there may be considerable value in reaching a settlement using negotiation between the parties.

 By reaching a settlement, both sides have avoided the uncertainty of what the outcome would be at an Employment Tribunal. In addition, the matter could be concluded swiftly once settlement is agreed, rather than having to wait a considerable length of time for the matter to come before the Tribunal.

 

Are the without prejudice protections automatic?

No. As said above, it is important to be aware that for the without prejudice rules to apply, certain conditions must typically be met including, among other things, clear labelling of communications as without prejudice.

 

Protected conversations

Protected conversations are similar in nature to without prejudice material, but protected conversations relate to verbal communication rather than written correspondence. A protected conversation may, for example, facilitate conversations regarding an employee’s employment coming to an end in exchange for an agreed sum. If used correctly, protected conversations can take place without the risk of the content of those discussions being used, for example, as evidence in an unfair dismissal claim. However, there are limitations and requirements associated with protected conversations and, as a consequence, the issue should be approached with care.

 

The importance of gaining professional advice concerning without prejudice communications and protected conversations

1. To navigate the process effectively

 

As referred to earlier, protected conversations and the without prejudice rules can be extremely useful in resolving disputes. However, it is important to remember that in order for such protection to apply certain requirements need to be met. If the without prejudice rules are deemed not to apply it would follow that such material is not confidential. It would be unfortunate if a party sent correspondence in the belief that such material would be confidential only to find out, at a later date, that it was not.

Gaining professional advice at an early stage will ensure that errors, such as those which occurred in the situation referred to above, are avoided. This will provide peace of mind that all aspects of the process are handled properly.

 

2. To provide an assessment of prospects

 

In order to achieve a positive outcome, it is necessary to know the likelihood of success. An assessment from a professional advisor would highlight the strengths and weaknesses in a case and would inform next steps. Such information is likely to affect whether or not settlement discussions are entered into and, if so, at what stage.

 

The prospects of a case may vary over time. For example, the disclosure of evidence may reveal information which was previously unknown. Ongoing professional advice is likely to ensure that any assessment of prospects remains up to date and relevant.

 

3. To provide advice regarding settlement offers

 

The issue of whether or not a settlement offer should be made (or should be accepted) is closely connected to prospects as referred to above. Obtaining professional advice will help to reveal what would be appropriate in the circumstances and why. These views will then influence how settlement discussions develop.

This blog has highlighted the potential value of engaging in settlement discussions. However, if agreement cannot be reached with regard to a settlement, the matter may well progress to an Employment Tribunal. As said above, professional advice is likely to help when determining whether, or to what extent, to engage in settlement discussions.

 

4. To ensure that the case is dealt with properly

 

There are various tasks to be completed, with associated deadlines, that apply to those bringing or defending an Employment Tribunal claim.  These activities apply at each stage of the process. For example, there are time limits for bringing a claim, or submitting a response etc. Once a claim is submitted an Employment Tribunal Judge will determine next steps with regard to the remaining tasks to be undertaken, and will set the deadlines by which those activities need to be completed by.

 

You may be asking yourself ‘why would I want to prepare for the Employment Tribunal when negotiations could resolve the situation?’ The answer is that engaging in settlement discussions does not, (in itself).  remove the obligations on the parties to undertake the various tasks required by the Employment Tribunal, nor does it alter the deadlines which are set out. That being so, it is often necessary to run both activities in tandem.

Obtaining professional advice will provide clarity regarding next steps. Such assistance is likely to involve guidance on all aspects of the Employment Tribunal process as well as the nature and timing of any settlement offers.

 

Plotkin & Chandler works exclusively in the areas of HR and employment law, and we represent both employees and employers.

 

We have expertise in handling negotiations, and advise on how to use the without prejudice rules, and protected conversations, effectively to achieve a positive outcome.

 

To discuss your requirements, and the ways in which we can help, call us on 020 3923 8616 or email us at info@plotkinandchandler.com