Lifting The Without Prejudice Veil

Employers may often wish to have discussions with employees in order to agree terms upon which the employee will leave in return for a sum of money. Such discussions are often referred to as being "without prejudice". In its simplest terms, this means the contents of the discussion or correspondence are confidential as between the parties and cannot be referred to or relied on as evidence. The rationale behind this of course, is that discussions on a without prejudice basis allow a degree of protection to enable open and frank discussions without either party feeling that their potential proceedings or on-going proceedings are being compromised. However, employers need to be wary as there has been a move by Employment Tribunals to go behind the without prejudice label.

The recent Employment Appeal Tribunal case of Brunel University & Another -v- Vaseghi & Another has reaffirmed the position taken by the EAT in BNP Paribas -v- Mezzoterro [2004] that the need in discrimination cases to get to the truth of what occurred can displace the public interest of promoting settlement of claims.
Interestingly, both the BNP Paribas case and the recent Brunel case involved cases of discrimination. In both cases, the judges made reference to the "evil of discrimination" such that employers cannot necessarily rely on the label of without prejudice in these types of cases. It is not clear whether the courts would be as willing to lift the without prejudice label in other types of claims e.g. unfair dismissal or whistleblowing claims. What is clear, however, is that employers should use the words "without prejudice" carefully and will want to take legal advice before initiating such conversations with their employees.