« . In some circles of the community, there is a belief that almost amounts to a superstitious obsession that the term « without prejudice » is obsessed with practically magical qualities, and that everything that is done or said under its presumed aegis is always hidden from the prying eyes of a court. « In general, a party`s admission to something can be used against them in court. The No Prejudice Rule (WP) means that statements made as part of a genuine attempt to resolve a dispute cannot be used in court as evidence of a confession against the party who made them. There are certain exceptions to the rule without prejudice: « The rule is not absolute and material without prejudice can be invoked for various reasons if the justice of the case so requires. 8 If one party (Part A) settles a dispute with another and then attempts to recover all or part of the settlement money paid by another party (Part B), Party B will almost inevitably argue that Party A, regardless of the substance, has settled an unreasonably large amount. In these circumstances, the content of impartial discussions may be considered evidence in subsequent proceedings to determine the extent to which Party A has fulfilled its obligation to mitigate harm.14 These include emails, letters, telephone calls or meetings that do not enjoy impartial protection. For example, you could write a letter to your employer to resign from your job or file a complaint. Or maybe you can request the disclosure of important evidence or the contact information of a witness in a case before an employment court. Any of the above examples would be open. This means that there is an element of protection for parties to a dispute when they open discussions on an impartial basis. (This is also called « impartial protection » or « impartial privilege. ») All discussions conducted under the guise of such protection or privilege shall be confidential between the parties.
Evidence of impartial negotiations could be provided to declare delays in the continuation of the dispute or obvious consent, for example to defend a referral request for lack of prosecution.15 On the one hand, labeling a notice « without prejudice » because you do not want it to be admissible in court or other proceedings does not guarantee that it will be protected. Courts and arbitrators may authorize the taking of evidence if it is in the interests of justice. As an extreme example, you can`t make a slanderous statement against a person or company in an email and get away with marking the communication as « unbiased. »  If the exchange reveals clear and impartial evidence of perjury, extortion or other unambiguous criminal misconduct or conduct; A communication (written or oral1) must be made in the context of genuine settlement negotiations in order to be « impartial ». It is not enough to label a document as « without prejudice. » The circumstances surrounding it must be considered in order to decide whether protection should apply. « Without prejudice, there is no label that can be used indiscriminately to exempt an act from its normal legal consequences if there is no real dispute or negotiation. »2 It allows for free negotiations when an employer-employee dispute exists on an `informal` basis to attempt to resolve that dispute. Any written communication must be clearly marked with « without prejudice » and any oral discussion must also be preceded by « without prejudice ». They will then often give you a letter with the inscription « without prejudice » setting out the details of this offer and sometimes the reasons for the offer and the consequences of the non-acceptance (for example. B, you will initiate enforcement proceedings or there will be a dismissal exercise). The difference between unbiased forms of communication and other « open » forms of communication is also discussed. So in a non-biased discussion, if your employer raises an issue with you that might violate trust, you can`t use it against them. Yes, and it happens frequently. This means that your employer has done something wrong, but in many cases they may want to bypass some of the tedious redundancy processes and give you an extended package instead.
If you decide not to take it, it will almost certainly be removed and you will then go through the full termination process, but without a boost in severance pay. You won`t be surprised to hear that most people want to follow the path without prejudice – especially if the redundancy is real. The term can and should be used when you want to communicate or respond to a settlement offer, express your willingness to negotiate or reconsider your position, and if you want to make a counter-offer or counter-offer. The conclusion that these communications are « without prejudice » brings them into the protected area of « settlement privilege », keeping them « unofficial » and making them (in most cases) inadmissible, as mentioned above. Thus, if in general (and there are some exceptions) when the protection of a situation is unscathed, everything that is said and done in that situation – whether in a meeting, letter, email, etc. – can no longer be used as evidence or invoked by a party. We are labour law specialists who only work on labour law cases and represent only employees (not employers). So we really understand what it`s like when your employer treats you badly, and we can usually help you find a way forward. « Open » communication is the opposite of impartial communication and can be used and used in court. .