“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. The rationale behind the “without prejudice” rule is that it encourages parties to resolve 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.