‘Without prejudice’ discussions


Confidential discussions aimed at resolving a dispute on agreed terms cannot be revealed to a tribunal, even if no agreement is reached. This is known as the without prejudice rule. Its rationale is that promising confidentiality encourages parties to talk freely with a view to resolving their differences outside court. The without prejudice rule protects discussions from disclosure in all court proceedings as long as:


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


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


• a party has not behaved with obvious impropriety during negotiations, for example, by discriminating or victimising the employee.