The Right to (request to) be Accompanied

Right to be Accompanied

Section 10 (1) of the Employment Relations Act 1999 provides that

(1) This section applies where a worker:

(a) is required or invited by his employer to attend a disciplinary or grievance hearing; and

(b) reasonably requests to be accompanied at the hearing.

The right to be accompanied applies to workers, not only employees, and is not subject to any qualifying period of service. By contrast, at the time of writing, an ordinary unfair dismissal claim requires two years’ continuous employment.

The remaining subsections of section 10 set out the rights that arise when the conditions in section 10(1)(a) and (b) are met. These include the right to be accompanied by a trade union representative or colleague. The companion may present and summarise the worker’s case, respond on the worker’s behalf to views expressed at the hearing, and confer with the worker, but may not answer questions on the worker’s behalf.

A worker may complain to an Employment Tribunal that their employer has failed, or threatened to fail, to comply with these rights. If the claim is successful, the tribunal can order the employer to pay compensation of an amount not exceeding two weeks’ pay.

Wolfe v Taka Mayfair Limited

Mr Wolfe had been employed by Taka Mayfair Limited, which runs a restaurant, as a Head Sommelier / Manager from 21 December 2022 to 21 January 2023.

Mr Wolfe alleged that, following the end of his shift, and without advance warning, the two owners of the restaurant had a face-to-face discussion with him, without explaining the purpose, or what might happen, at the end of which he was dismissed.

Importantly, Mr Wolfe accepted that he did not ask to be accompanied during the meeting (because he did not realise until too late that the meeting could result in his dismissal).

After issuing his claim, Mr Wolfe made an application to the Employment Tribunal to amend his claim to add a complaint of breach of the right to be accompanied.

Employment Tribunal Decision

The Employment Tribunal refused Mr Wolfe’s application. It noted that the second qualifying requirement for the right to be accompanied to be engaged is that the Claimant asks to be accompanied to the meeting. The Claimant accepted that he made no such request. Therefore, the Employment Tribunal concluded that the statutory right to be accompanied was not engaged and, if the claim were allowed to proceed, it “would be doomed to fail”. As a result, Mr Wolfe’s application to amend his claim was refused.

Appeal – EAT

Mr Wolfe’s principal argument on appeal was that his employer’s failure to explain the nature or purpose of the meeting in advance meant that he did not realise dismissal was a possible outcome until it occurred. He argued that this deprived him of a reasonable opportunity to request to be accompanied. Mr Wolfe also argued that it could not be right that an employer could avoid, or attempt to avoid, the right to be accompanied being triggered, by not alerting a worker to the nature of the meeting or its potential outcome.

Ultimately, the EAT rejected Mr Wolfe’s submissions. The EAT determined that the legislation was clearly drafted. In order for the right to be accompanied to apply, a worker must both be invited or required to attend a hearing and they must reasonably request to be accompanied. Therefore, the EAT went on to find the Employment Tribunal was right to conclude that, if the case is not one where the worker “reasonably requests to be accompanied at the hearing”, the remainder of section 10 (which, as detailed above, sets out the right to be accompanied) does not apply. The EAT noted that, if this is thought to be a gap in the statutory protection, then it is a matter for Parliament to fill.

The EAT noted that if a worker invoked their right to accompaniment during the meeting itself, that might amount to a reasonable request (if, on account of the employer’s reticence, the worker could not reasonably have been expected to appreciate the nature of the meeting any sooner).

There was discussion throughout the appeal regarding the relevance of the Acas Code of Practice on Disciplinary and Grievance Procedures (Acas Code). The Acas Code states that employers should inform workers of their right to be accompanied. However, the EAT drew a distinction between that guidance and the statutory requirements in section 10. A failure to follow the Acas Code does not, by itself, give rise to a claim, and section 10 does not impose a separate duty on an employer to notify a worker of the right to be accompanied when inviting them to a disciplinary or grievance hearing. This does not mean that employers can safely withhold that information. A failure to explain the nature of the meeting or remind the worker of the right to be accompanied may still be relevant to whether a dismissal was procedurally fair and could therefore have consequences in an unfair dismissal claim, where the employee has the required qualifying service.

Summary

The statutory right to be accompanied only arises if the worker makes a reasonable request to be accompanied. In some cases, the parties may disagree about whether something said or written by the worker amounted to such a request, and the tribunal will need to determine that issue from the evidence. In this case, however, Mr Wolfe accepted that he had made no request at all. The conditions in section 10(1) were therefore not satisfied and the accompanying rights set out in the remainder of section 10 did not arise.

This appears to be the first time the EAT has determined this particular issue. The decision should not, however, be treated as giving employers permission to arrange “ambush” disciplinary meetings. Although the statutory right to be accompanied only arises once a worker makes a reasonable request, an employer’s failure to explain the purpose of the meeting and its possible consequences may still render a dismissal procedurally unfair. Depending on the circumstances, it may also increase the risk of an unfair dismissal or discrimination claim. Employers should therefore ensure that managers understand the right to be accompanied, can identify a request even if it is expressed informally and, where appropriate, adjourn the meeting so that the worker can arrange for a companion to attend.