A recent Employment Appeal Tribunal (EAT) decision highlights a potential gap between the statutory right to be accompanied and good disciplinary practice, reinforcing the importance for employers of making the right to be accompanied clear before relevant meetings. Workers have a statutory right to be accompanied at a disciplinary or grievance hearing but the EAT decision confirms that this right only arises where the worker makes a reasonable request to be accompanied. This is the case even where the employer has not told the worker in advance what the meeting will be about.
Background
The statutory right applies to workers and does not depend on length of service. The legislation sets out two conditions that must be satisfied for the right to apply:
- the employer must require or invite the worker to attend a disciplinary or grievance hearing; and
- the worker must reasonably request to be accompanied.
In Wolfe v Taka Mayfair Ltd, Mr Wolfe had been employed by Taka as head sommelier and manager of the restaurant for around one month. Without warning, the restaurant owners called a face-to-face meeting at the end of Mr Wolfe’s shift and dismissed him. The owners did not explain the purpose of the meeting, or what may happen, prior to their discussion with Mr Wolfe.
Consequently, Mr Wolfe brought a tribunal claim against Taka and later sought to amend the claim by alleging that the owners had breached his statutory right to be accompanied at the relevant meeting. Whilst Mr Wolfe accepted that he had not made a request to be accompanied, he sought this amendment on the basis that Taka had not informed him what the meeting would be about, so he did not have time to ask to bring a companion before he was dismissed.
Employment tribunal decision
The tribunal refused Mr Wolfe’s request to amend his claim, concluding that his application was “doomed to fail” on the basis that he had not met the statutory requirements. Mr Wolfe accepted that he had not made a request to be accompanied at the meeting. As a result, the tribunal held he had not engaged his right to be accompanied.
Employment Appeal Tribunal
The EAT dismissed Mr Wolfe’s appeal, concluding that the tribunal had correctly refused his application to amend his claim. The EAT considered the following key issues:
- Unambiguous language in the legislation: Both conditions must be satisfied to engage the right to be accompanied. Mr Wolfe had admitted that he had not made the required request, so the right had not arisen.
- Parliamentary purposes vs statutory language: Whilst the legislation sets out an obligation for the worker to act reasonably in making a request, there is no reciprocal obligation on the employer to act reasonably in arranging the meeting. The EAT recognised that this could leave a worker without protection where they had no reason to think the right may arise but concluded that the courts could not rewrite the statutory scheme.
- Acas Code of Practice: The Code expects employers to notify workers of their right to be accompanied when notifying them of a disciplinary meeting. However, that best practice guidance could not displace the statutory requirement for a request.
The EAT noted that an employer’s failure to inform a worker of their right to be accompanied may be relevant when considering the fairness of dismissal. That did not assist Mr Wolfe because he did not have the required length of service to bring an ordinary unfair dismissal claim.
Implications for employers
Although the decision confirms that employers do not themselves trigger the statutory right by failing to mention it, relying on that technical distinction would carry risk. Employers should:
- tell workers expressly about their right to be accompanied when inviting them to any disciplinary or grievance hearing at which the statutory right might apply;
- explain the purpose and potential outcomes of the meeting in writing in advance;
- give the worker reasonable time to prepare and arrange a companion; and
- check disciplinary and grievance policies, which may provide broader rights than the statutory minimum.
These steps reflect the Acas Code and also help employers demonstrate a fair procedure if an employee brings an unfair dismissal claim.
As noted by the EAT, this will become particularly relevant from 1 January 2027, when the service requirement for unfair dismissal claims falls to six months. Employers will therefore face potential unfair dismissal scrutiny much earlier in the employment relationship, increasing the importance of following a fair procedure and clearly communicating the right to be accompanied.
