Bringing up your settlement talks to make you look bad can backfire on your employer.
“Court of Appeal: settlement talks lost 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... protection once used publicly to discredit the employees.”
Your employer cannot use "without prejudice" protection as cover to punish you for having taken part in settlement talks.
- Keep a record of any occasion where your employer discusses or references settlement talks outside the negotiation itself, including dates and exact wording where possible.
- Do not assume "without prejudice" talks are completely off the table forever. There are recognised exceptions, and how your employer behaves afterwards matters.
- If you believe you have been penalised for taking part in settlement discussions or raising an earlier complaint, get advice on whether this could support a victimisationBeing treated badly because you've raised a complaint, supported someone else's complaint, or done something else the law protects, such as raising a grievance or whistleblowing. It is unlawful in its... claim.
The situation
Two university employees each brought a race discrimination claim against their employer, supported by their trade union. Without prejudice settlement talks took place before the hearings but did not resolve anything, and both claims were rejected by the tribunal at first instance. While appeals were still ongoing, the university's most senior leader wrote an article in an internal newsletter referring to "unfounded allegations, especially when they are accompanied by unwarranted demands for money." The two employees believed this clearly pointed at them and effectively accused them of trying to extract money during the earlier settlement discussions.
What the court found
The employees brought new claims of victimisation over the newsletter article. The university tried to keep the settlement discussions out of evidence entirely, arguing they were protected as "without prejudice" and could never be referred to in tribunal. The Court of Appeal disagreed. Without prejudice protection is strong, but it is not absolute. It can fall away where using it as a shield would let someone get away with unambiguous improprietyThe narrow exception that strips a without prejudice conversation of its protection. Courts reserve it for genuinely extreme conduct, like discriminatory remarks made during the conversation itself, n..., a principle already established in Unilever plc v Procter & Gamble Co [2000] 1 WLR 2436. Publicly referencing the substance of the settlement talks, in a way that cast the employees in a bad light for having taken part in them, was found capable of falling into that category, so the tribunal was entitled to look at the evidence.
Brunel University v Webster and Vaseghi [2007] EWCA Civ 482, Court of Appeal, decided 22 May 2007.