Without prejudice
If you’re reading this you have probably either received a draft ‘without prejudice’ compromise agreement and/or you are considering entering into ‘without prejudice’ negotiations with your employer to maximise an out-of-court settlement. If you just want to find out how much your compromise agreement could be worth, try our free Compromise Calculator.
This page explains the history of ‘without prejudice’ in plain English, as well as providing some invaluable tips on how to conduct your own without prejudice negotations. We have set out a basic without prejudice letter below for you as an example.
Without prejudice’ is technical term which means ‘this letter cant be shown to a judge.’ Compromise agreements are nearly always marked ‘without prejudice’ so that the employee can’t take the compromise agreement to a judge in an employment tribunal and rely on it as evidence that the employer has done something wrong.
If the compromise agreement was not marked ‘without prejudice’, you would be perfectly entitled to reject the money offered within it, and instead start a tribunal claim, and then say to the judge “my employer has offered to pay me x, this proves that they must have done something wrong”.
The legal doctrine of ‘without prejudice’ correspondence has developed over the years in order to encourage the two warring factions to conduct negotiations without fear of their admissions prejudicing their success at any trial if settlement can’t be reached. It’s in the best interests of public policy that opposing sides to a dispute can settle out of court, because the costs of courts and tribunals are funded by the public purse.
In order to qualify for without prejudice protection, any letter headed ‘without prejudice’ must contain an offer of settlement of a claim. It is not good enough to mark any old letter ‘without prejudice’ (for example a letter completely admitting liability) unless that letter contains a genuine attempt to settle the case.
Without prejudice negotiations tactics
Normally the ‘open’ letters (those not marked ‘without prejudice’) between the two parties will be outright denials of liability, and at the same time ‘without prejudice’ letters are sent saying “just in case we are wrong about the case, then we offer you £x in full and final settlement.”
When writing without prejudice letters, or making without prejudice phone calls, be sure to head up the letter with the actual words ‘without prejudice’, or if its a call, ask the other side whether they mind if you talk without prejudice.
There are some very useful pages on this site dealing with negotiating tactics, but essentially its important to remember that your employer is not going to give large sums of settlement money to disgruntled employees just because they ask nicely. In fact, you’re probably disgruntled in the first place because your employers are not particularly nice people. So you need to display a tough negotiating stance.
That is not to say you should be rude. Au contraire, we at Compromise Agreements Ltd are always polite and reasonable, but still tough. So precis your offer with some salient facts regarding your case. It helps if you can very concisely identify the three legally strongest points and set them out as briefly as possible. Then offer the olive brach of your settlement amount. As you will see elsewhere on this site, it is often advisable to aim high rather than low, but not so high that you look unrealistic.
In light of the above, you may be wondering how on Earth you are supposed to pitch your without prejudice compromise agreement negotiations in the exact way to acheive the maximum settlement with the minimum amount of fuss. The answer is that you need the experts on your side. If you’d like to find out more about instructing us, see the Representation page.
Here is an abbreviated example of a without prejudice letter just to give you an idea:-
09 August 2010
WITHOUT PREJUDICE
Dear Sirs
I write further to my open letter of x date. In that letter I set out my grievances and you should be aware that I am more than willing to pursue this matter to tribnual in the absence of a swift resolution. My health has been badly affected and I attach no price to my health. On a purely commercial basis however, and for a swift resolution, I would be prepared to sign a compromise agreement giving me 3 months wages tax free plus my full notice pay. This offer remains open for 7 days from the date of this letter.
Yours faithfully
Don’t forget to get a rough idea of the value of your case by filling in the Compromise Calculator. If you are considering instructing us to represent you, have a look at the Testimonials to see how we helped others in your situation.
If you’re interested in finding out whether we can work together in your without prejudice negotiations, or if you have any other compromise agreement query, get in touch. Email us on info@compromiseagree.com, call 0800 533 5134 or send a message in the box to the right.
