Chris Bryden & Michael Salter trace the origins & history of the without prejudice rule
As with all litigation, claims to an employment tribunal carry risk. Even what appears to be the strongest claim, or most powerful defence, can be upset by a witness that does not come up to proof, a previously undisclosed document or a tribunal that simply does not agree with the argument on the day. For that reason, combined with the desire to save face, expenses or simply the hassle of attending a tribunal and the difficult experience of submitting to cross-examination, many litigants seek to compromise claims.
Offers to settle
A time-honoured and standard method of seeking to compromise is by the simple means of one side or the other making an offer to settle. Any genuine attempt to compromise proceedings will usually fall within what is commonly known as the “without prejudice” rule (whether or not it is marked as such), meaning that, usually, any such negotiations will not come to the notice of the employment judge and wing-members hearing the case, because they are privileged,
