Case update
Clarification on the right to be accompanied at disciplinary or grievance hearings where the employee has not made a request
The Employment Appeal Tribunal (EAT) has confirmed that an employer’s duty to allow a worker to be accompanied at a disciplinary or grievance hearing is triggered only where the worker has made a reasonable request to be accompanied.
The decision in Wolfe v Taka Mayfair Ltd confirms that employers are not under a standalone statutory duty to tell workers about the right to be accompanied, or to explain during a meeting that the right may be engaged.
However, employers should still follow the practical steps set out in the key takeaways below to reduce the risk of disputes, employee relations issues, and wider procedural challenges, as well as remaining mindful of the Acas Code of Practice on disciplinary and grievance procedures, which continue to emphasise the importance of fair and transparent disciplinary and grievance procedures.
We summarise practical takeaways for employers below.
Background
Mr Wolfe was employed by Taka Mayfair Ltd (Taka) as Head Sommelier between December 2022 to January 2023. Without prior notice, he was called to a meeting with the restaurant's two owners and told that his employment was being terminated.
Mr Wolfe brought Employment Tribunal (ET) proceedings and sought to amend his claim to add a complaint that Taka Mayfair Ltd had breached his statutory right to be accompanied under section 10 of the Employment Relations Act 1999 (ERelA).
The right to be accompanied applies where a worker:
(i) is required or invited by his employer to attend a disciplinary or grievance hearing; and
(ii) reasonably requests to be accompanied at the hearing.
ET's decision
The ET rejected Mr Wolfe’s amendment application. The ET accepted that Mr Wolfe had been invited to a hearing capable of falling within the first limb of section 10 ERelA, but that the proposed claim was bound to fail because he had not made any request to be accompanied.
EAT decision
Mr Wolfe appealed to the EAT on the basis that, because Taka had not made him aware of the purpose of the meeting, he had no reasonable opportunity to exercise his right to be accompanied.
He also argued that employers should not be able to bypass the statutory right by failing to disclose the nature of the meeting in advance.
The EAT dismissed the appeal, observing that the ET was “obliged to apply the legislation as it is, and not as it may be argued that it should be” and that any perceived gap in protection was a matter for Parliament.
The EAT held that the ET had been correct to conclude that an employer’s duty under section 10 ERelA arises only where the worker reasonably requests to be accompanied. The employer is not obliged to enable the worker to have that support, unless the worker has specifically proactively made a request. As Mr Wolfe had not made a request, no statutory right arose. It rejected Mr Wolfe's argument that the requirement for a worker to act reasonably in making a request implied a corresponding obligation on the employer to act reasonably, such as by informing the worker of the meeting’s purpose.
However, the EAT noted that a worker may be able to make a reasonable request during the meeting, once its purpose becomes clear. It should also be noted that section 10 ERelA does not require the worker’s request to be in writing.
Takeaways
This appears to be the first time the EAT has considered the rights under section 10 ERelA where a worker has not been made aware of the nature of the meeting in advance. The decision provides useful clarification on the scope of employers’ obligations. Whilst the statutory right to be accompanied is not triggered unless a worker makes a reasonable request, employers should maintain high standards of transparency and communications to minimise dispute and employee relations risks.
Follow ACAS Code
Employers should continue to follow the Acas Code of Practice, which recommends informing workers of their right to be accompanied in disciplinary and grievance hearings.
Explain purpose
Where possible, employers should tell workers clearly why a meeting is being held, particularly where disciplinary action may be discussed.
During the meeting
Managers should remain alert to requests made during disciplinary or grievance meetings. If a worker asks to be accompanied, managers should consider pausing or adjourning the meeting where appropriate.
Verbal requests count
Employers should remember that a request to be accompanied does not need to be in writing; a verbal request may be enough.
Although the EAT’s decision confirms that section 10 ERelA imposes no obligation on employers to proactively notify workers of their right to be accompanied, employers should continue to follow the guidance provided by the Acas Code of Practice, communicate clearly about the purpose of meetings and respond appropriately to requests to be accompanied when they arise.
Disclaimer
This update should not be treated as legal advice and only provides general information on the issues discussed.
