Without Prejudice: A Guide for NZ Employers

“Without prejudice” is a legal term often used in workplace conversations, letters, or negotiations. In simple terms, it means that something said or written cannot later be used against a person in court or at the Employment Relations Authority.

This is important for New Zealand businesses because it gives employers and employees a safe space to talk openly about resolving disputes. Many Auckland businesses we’ve worked with find that using “without prejudice” helps them settle issues faster and with less stress. But it can also be confusing, especially when it comes to when and how to use it correctly.

‍

In this guide you’ll learn:

• The meaning of “without prejudice” in New Zealand employment law
• How and when to use “without prejudice” in workplace discussions
• The difference between “without prejudice” and “without prejudice save as to costs”
• Real examples of “without prejudice” in action
• Practical tips for employers and employees

‍

What Does Without Prejudice Mean?

‍

At its core, “without prejudice” means that what is said or written cannot be used as evidence later in legal proceedings. The idea is to encourage open, honest settlement talks without fear that a proposal or admission will come back to harm the person making it.

‍

In New Zealand, this protection comes from the Evidence Act 2006, which recognises settlement negotiations as privileged communications. Section 57 of the Act specifically protects “without prejudice” discussions, making them inadmissible in court or the Employment Relations Authority, unless certain exceptions apply.

‍

For example, if an employer in Auckland wants to discuss a confidential exit package with an employee, they might send a without prejudice letter. If the deal is rejected, the letter cannot usually be shown to the Employment Relations Authority.

‍

Why Without Prejudice Matters in Employment NZ

‍

In New Zealand employment law, relationships are built on good faith. Sometimes, however, disputes arise. This could be over performance, pay, or workplace behaviour. Using the without prejudice basis allows both sides to explore solutions without escalating straight to legal action.

‍

Employers who understand this concept can often resolve disputes more quickly, saving time and protecting workplace culture. It also shows staff that the business values fairness and resolution.

‍

Without Prejudice Example in the Workplace

‍

Imagine a small business in Auckland where a manager and an employee disagree about performance concerns. The manager wants to propose an exit package. By holding a conversation without prejudice, the manager can explore this option without worrying that the employee will later use the discussion as proof of unfair treatment.

‍

This is not a licence to say anything without consequences. The conversation still needs to be respectful and in line with employment law.

‍

Key Takeaways For Employers

• “Without prejudice” protects settlement discussions from being used as evidence.
• It gives both sides the freedom to talk openly about resolving disputes.
• Employers should use it carefully, respectfully, and with good faith.
• Written offers or letters should always be clear and lawful.
• When in doubt, seek HR or legal advice before starting a “without prejudice” discussion.

‍