What Is A 'Without Prejudice' Conversation?

If you're having problems at work and your employer asks to have a "without prejudice" conversation, you might feel confused or even nervous. What does this actually mean? Should you agree to it? What happens during the conversation? And what should you look out for?

What Does ‘Without Prejudice’ Mean?

A ‘without prejudice’ conversation is a private discussion between you and your employer. The aim is usually to resolve a problem or dispute without going through a formal process like a personal grievance or Employment Relations Authority (ERA) case. The term ‘without prejudice’ means:

What is said in the conversation cannot be used later in court or legal proceedings unless both sides agree or special rules apply.

This legal protection allows both parties to speak openly and try to reach a resolution.

Why Might an Employer Ask for a Without Prejudice Conversation?

There are several reasons your employer may want to have a without prejudice discussion:

• To settle a dispute quietly.  If there is tension or conflict (e.g., a complaint, performance issue, or disciplinary matter), they might want to use a without prejudice discussion to offer you a way out.

• To offer a negotiated exit.  Your employer may propose ending your employment through a mutual agreement, like a settlement or resignation.

• To avoid a formal process such as a long disciplinary or performance process, or to reduce legal risk.

This kind of conversation is common where the employment relationship is breaking down and both sides want to explore their options.

What Happens in a Without Prejudice Conversation?

Typically your employer will invite you to a meeting, mentioning that it is to be ‘without prejudice.’   They will outline the issue, for example, they may raise concerns about performance, conflict, or a complaint.  They may then make you an offer.  Often this offer will be a settlement agreement, which could involve:

• You agreeing to leave the job,

• A payment (e.g., notice pay or a settlement sum), and

• A mutual non-disparagement or confidentiality clause. 

  
  

They should then give you the opportunity to consider the offer before signing. You should usually be given a few days to respond and the employer should encourage you to seek legal advice before signing.  The conversation may feel uncomfortable but generally it is intended to create a space to talk openly, with protection.

What Should I Be Wary Of In A Without Prejudice Conversation?

While without prejudice conversations can be helpful, they can also come with risks. Watch out for the following:

Pressure to Accept Quickly

Some employers may try to get you to agree on the spot. You don’t have to sign anything right away and you should take time to think and seek advice.

Lack of Clarity

Make sure you understand what is being offered. Ask for details like:

• “What are the terms of my exit - am I able to resign?”

• “What will other employees be told about my exit?”

• “What happens to my final pay, holiday pay, or reference?”

• “Will there be a record of dismissal?”

Being Misled or Intimidated

If you’re made to feel like you must accept or you’ll be fired anyway, this may be unlawful pressure or duress. That can undermine the legal protection of the discussion and it is best to end the discussion and seek legal advice.  

Losing the Right to Raise a Personal Grievance

Signing a settlement often means giving up your right to raise a personal grievance later. This is a big decision, and final.  If you are concerned about this requirement, get advice from an expert on whether this is the right decision.  

How Can You Prepare for a Without Prejudice Discussion?

It’s normal to feel unsettled, but try to keep your cool. Don’t panic or say yes to anything under pressure.  Document what is said during the conversation, including the date, who was present, and any offers made. You can ask the employer to send a written summary of the offer or a draft settlement agreement. This will help you review it properly.  Think carefully about your options and whether you believe you are being treated fairly.  If in doubt, seek legal advice to ensure you are making the right decision.  

How can an employment advocate help during a without prejudice discussion.  

Seeking advice or representation from a legal professional such as an advocate can help you to review what is being offered, advise whether the offer is fair, and help you negotiate better terms for your exit, payout etc.  

You should speak to a lawyer or advocate as soon as you’re invited to a without prejudice conversation or as soon as you receive a settlement offer.  Early advice helps you understand your rights and avoid being pushed into something that isn’t in your best interest.

If you agree to settle, the final agreement must be signed with the help of a lawyer, union rep, or advocate, and they must certify it under section 149 of the Employment Relations Act. The agreement will need to:

• be in writing,

• be signed by both parties,

• state that the employee has had independent legal advice, and

• include a clause confirming the legal expert explained the effect of the settlement.

  
  

Without this process, the agreement may not be legally binding even if you said “yes” during negotiations.

FAQs

Can I record the conversation?

Yes, but only if you’re part of the conversation. It’s legal in NZ to record a conversation you’re involved in. However, it’s usually better to take notes or ask for the offer in writing.

Can I bring someone with me?

You can ask to bring a support person, like a friend, union rep, or advocate. This can help you feel more confident and give you another set of ears.

Do I have to agree to the offer?

No. A without prejudice conversation is voluntary. You can walk away or make a counter-offer. The employer can’t force you to agree.

What if I feel bullied or pressured?

If you’re being pressured or threatened, the legal protection of “without prejudice” may not apply. Keep records, and get legal advice right away.

What if I refuse to meet?

You don’t have to attend a without prejudice discussion. But refusing may lead to other steps like a formal disciplinary process. Sometimes it's better to attend and listen, then take time to respond.

Without prejudice conversations are a common part of employment law in New Zealand. They can be useful but only if you understand your rights and feel safe to make decisions. Never rush into anything. Always ask questions, take notes, and get advice before agreeing to leave your job or sign anything.  Remember, just because a conversation is “without prejudice” doesn’t mean your rights disappear. If you are being invited to a without prejudice discussion, and you not sure how to respond, get in touch today for a free consultation.  MathewsWalker.co.nz | 0800 612 355

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