Without prejudice: how it differs from a protected conversation

You’ve heard both phrases, without prejudice and protected conversationA conversation between an employer and employee about ending employment by mutual agreement, protected under section 111A of the Employment Rights Act 1996. The protection means the conversation canno..., used almost interchangeably. They’re not the same thing. Get the wrong one and it could cost you at tribunal.

Without prejudice needs a real dispute already

The without prejudiceA legal principle that allows parties to have settlement discussions without those discussions being used against them later in tribunal proceedings. It only applies where there is a genuine dispute a... rule is older than section 111A, and works differently. It only protects a conversation where there’s already a genuine dispute between you and your employer, and both sides are genuinely trying to settle it. The test the courts use is whether litigation had been contemplated, or reasonably could have been, by either side.

That matters because employers sometimes label something without prejudice that doesn’t actually qualify. In one well known case, an employer proposed exit terms after an employee raised a grievanceA formal complaint raised by an employee against their employer, triggering a legal obligation to investigate and respond. about returning from maternity leave, the tribunal found there was no existing dispute at that point, so the conversation wasn’t protected at all, and everything said in it was admissible.

How this differs from a protected conversation

A protected conversation, under section 111A, doesn’t need an existing dispute at all. That’s the entire point of it, it lets your employer raise an exit before anything has formally gone wrong. Without prejudice needs a dispute to already exist; a protected conversation doesn’t.

The two protections also cover different ground. Without prejudice can, in principle, cover a wider range of claims, since it’s a general evidence rule, not employment-specific. A protected conversation only ever protects against ordinary unfair dismissalA legal claim you can bring if your employer dismissed you without a fair reason or without following a fair process. You normally need two years of continuous employment to qualify, though some dismi... claims, nothing else.

When either protection can fail

Both protections have an exception for serious misconduct, but the bar is set at different heights. Without prejudice can be lost through “unambiguous impropriety”, courts describe this as reserved for truly exceptional cases, things like discriminatory remarks made in the conversation itself. A protected conversation is lost through the broader “improper behaviour” test, which includes things like undue pressure, not just extreme misconduct.

In practice, this means a protected conversation is easier to lose the protection of than a without prejudice one, and both depend entirely on what actually happened in the room, not what your employer decided to call it afterwards.

What this means for you

Don’t take either label at face value. If a conversation happened without a genuine, existing dispute, and your employer calls it “without prejudice”, that label may not hold up. If discrimination, whistleblowingMaking a disclosure about wrongdoing in your workplace, such as a health and safety risk, a criminal act, or a miscarriage of justice. If the disclosure qualifies as protected, the law gives you signi..., or serious pressure was involved, neither protection is likely to survive scrutiny. our guide on protected conversations