Should ‘without prejudice’ correspondence be included in the bundle for the Final Hearing in an Employment Tribunal claim?

Preparing for an Employment Tribunal case

We receive a lot of queries relating to the preparation of a bundle for the final hearing, and it is important to ensure the right documents are included, as this is the evidence the Employment Tribunal will review when determining a claim.

On occasion, a party will attempt to include without prejudice correspondence in the bundle for the final hearing. This includes correspondence which may have taken place between the parties via ACAS early conciliation.

What is ‘without prejudice’ correspondence?

This is correspondence between the parties which attempts to resolve the issues in dispute. It is often referred to as settlement discussions.

Should ‘without prejudice’ correspondence be included in the bundle?

Documents that can properly be 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 the 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 to settle the dispute. Otherwise, you may end up in a situation where correspondence could be admitted as evidence at the final hearing when you do not want it to be.

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 example, 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….’

When can ‘without prejudice’ correspondence be submitted to the Employment Tribunal?

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. This only applies if the claim is successful at the final hearing.

In this case you would tell the Employment Tribunal that the Employer had the opportunity to settle the 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, and in my experience, costs are rarely awarded in the Tribunal. This means that even if your claim is successful, you are unlikely to recover any costs incurred in pursuing the claim.

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.

What if a ‘without prejudice’ document is included in error?

If a ‘without prejudice’ document is included in the bundle in error, this should be highlighted to the Employment Tribunal and an updated version of the bundle provided to the Tribunal.

If the error is not picked up until the day of the final hearing, you should bring the issue to the Employment Judge’s attention at the start of the hearing and request they disregard the document.

As set out above, agreeing the bundle can be time consuming but it is important to ensure that any documents you intend to rely in, in support of your case, are included.

If you require any assistance with agreeing or bundle or directions regarding your Employment Tribunal in general, please do not hesitate to contact us on 01983 897003.