Without prejudice discussions





Confidential discussions aimed at resolving a dispute on agreed terms must not be revealed to a tribunal, even if no agreement is reached. This is known as the without prejudice rule. Its rationale is that parties who know that their settlement discussions will remain confidential are more likely to talk freely to try to resolve their differences outside court. The without prejudice rule protects discussions from disclosure in all court proceedings where:




• there is a pre-existing dispute between the parties, for example, an ongoing disciplinary procedure or an unresolved grievance; 





• there is a genuine attempt to settle the dispute; and





• one party has not behaved with obvious impropriety such as engaging in discrimination during the negotiations (BNP Paribas v Mezzotero [2004] EAT/0218/04/RN).




For a discussion to be kept secret from the tribunal on this basis, the without prejudice status and purpose of the discussion must have been explained to the employee, and their consent obtained, before the conversation took place.