Documents that can properly said to be ‘without prejudice’ are generally not permitted to be included in the bundle for the Tribunal to see, and therefore should not be included.
A document will not ‘properly’ be ‘without prejudice’ if it is not a genuine offer or attempt to settle claims.
It can be easy to get carried away with the use of ‘without prejudice’ on letters, but you should be careful not to do so unless you are actually making an offer.
If you are unsure then I recommend that you look at the letter carefully and if necessary put the content into two letters, one open and one ‘without prejudice’. For instance if you are writing to the Employer to set out what they have done wrong and to threaten them with a claim in the Employment Tribunal, but you are prepared to accept a compensation payment from them rather than continue, the first part about the case should be in a separate open letter. You should then put your offer in a ‘without prejudice, letter which starts ‘I write following my open letter of today’s date….’
You will have the opportunity to produce the ‘without prejudice’ letters to the Employment Tribunal once the case has concluded and you are successful. You can use the ‘without prejudice’ letters in support of your case if you are asking the Employment Tribunal to make the Employer pay your costs. In this case you would tell the Employment Tribunal that the Employer had the opportunity to settle this matter at the outset but they did not do so and they behaved unreasonably in defending the claim.
You should note that currently there are limited circumstances when you can recover your costs from the Employer, but this is set to change in the New Year.
What happens if the Employer insists on including a ‘without prejudice’ document?
If you find that you are in dispute with the Employer you should tell them your reasons for objecting in writing, and state that as agreement cannot be reached they should make an application to the Employment Tribunal to decide this issue.
If this happens the Tribunal will most likely set a pre-hearing to decide this issue with a Judge. If the Judge decides that it should not be included in the bundle, that Judge should not deal with your case at the final Hearing.
What if I am happy for the ‘without prejudice’ document to be included?
The chances of you both agreeing are slim however if you do agree the ‘without prejudice’ document can be included you can put it in the bundle.
The Tribunal may ask at the final Hearing about the document, in which case you can tell them that it was agreed that it should be included and is important to the case.