Can a worker rely on the right to be accompanied without asking?

The Employment Appeal Tribunal (EAT) has confirmed that the statutory right to be accompanied at a disciplinary or grievance hearing only arises where the worker has made a request to be accompanied. This remains the case even where the employer did not make it clear in advance that the meeting was disciplinary in nature.

Facts of the case

Mr Wolfe was employed as Head Sommelier and Manager of a restaurant operated by his employer, Taka Mayfair. Without prior warning, he was called to a meeting with the restaurant’s owners and dismissed. Before the meeting, he was not told why it had been arranged or that it could result in his dismissal.

Mr Wolfe subsequently brought a claim and sought to include a complaint that his employer had breached his statutory right to be accompanied under section 10 of the Employment Relations Act 1999 (ERelA).

Section 10 of the ERelA gives workers the right to be accompanied at a disciplinary or grievance hearing when they reasonably request it. Mr Wolfe accepted that he had not made such a request. However, he argued that this was because he did not realise the meeting was disciplinary in nature until it was too late, as the owners had not explained the purpose of the meeting beforehand.

The employment tribunal refused Mr Wolfe’s application to pursue a section 10 claim. He appealed to the EAT.

EAT decision

The EAT dismissed the appeal. It held that two conditions must be satisfied before the statutory right to be accompanied arises

1. The worker must be required or invited to attend a disciplinary or grievance hearing.
2. The worker must reasonably request to be accompanied.

Both conditions are required. As Mr Wolfe had not made any request to be accompanied, the statutory right was never engaged.

The EAT did acknowledge that, where the disciplinary nature of a meeting only becomes apparent once it has started, a request made during the meeting may be sufficient. However, this point was not decided because Mr Wolfe never made a request at any stage.

The EAT also considered the Acas Code of Practice on disciplinary and grievance procedures, which states that employees should be informed of disciplinary meetings in advance and reminded of their right to be accompanied. While the tribunal must take the Acas Code into account, the Code cannot override the statutory wording of section 10 ERelA, which requires the worker to make a request.

The EAT recognised that this interpretation could leave some workers without the practical opportunity to exercise their right to be accompanied where they are not told in advance that a meeting is a disciplinary. However, it noted that the legislation does not impose a duty on employers to notify workers of that right and that any change to the law would be a matter for Parliament.

The Birketts view

This decision provides useful clarification on when the statutory right to be accompanied arises. An employer will not automatically breach section 10 ERelA simply because a worker attends a disciplinary hearing without a companion. The worker must first make a reasonable request to be accompanied.

However, employers should not view this decision as permission to withhold information about the nature of a meeting or to depart from a fair disciplinary process. In practice, employers should continue to explain the purpose of disciplinary meetings in advance and remind employees of their right to be accompanied.

Employers who fail to do so may avoid liability under section 10 ERelA but could still face challenges in defending the fairness of any subsequent dismissal. Taking these steps will promote procedural fairness and reduce the risk of disputes arising later.