EAT confirms worker must request meeting companion before statutory right to be accompanied arises

What is the statutory right to be accompanied to meetings?

In a recent decision, the Employment Appeal Tribunal (EAT) has considered the statutory right to be accompanied to disciplinary and grievance meetings. The statutory right to be accompanied means that workers can be accompanied to disciplinary and grievance meetings by a fellow worker, trade union representative, or trade union official. A worker may bring a standalone tribunal claim if that right is breached, with compensation of up to two weeks' pay. Crucially, however, the statutory right only arises where the worker reasonably requests to be accompanied, as well as satisfying the other conditions in the legislation.

Factual background

In Wolfe v Taka Mayfair Ltd, the claimant was employed as a Head Sommelier / Manager at a Mayfair restaurant for a short period between 21 December 2022 and 21 January 2023. At the end of a shift, and without advance warning, the two owners of the respondent had a face-to-face discussion with him, at the end of which he was dismissed. The claimant initially brought claims for unfair dismissal and disability discrimination. After parts of his claim were struck out, the claimant sought to amend his claim to add a complaint that he had been denied his statutory right to be accompanied to the meeting. The tribunal refused the amendment on the basis that the claim was bound to fail, and the claimant appealed.

The decision

The EAT dismissed the appeal. The legislation sets out two “gateway” conditions before the right is engaged: the worker must be required or invited to attend a disciplinary or grievance hearing, and the worker must reasonably request to be accompanied at that hearing. The claimant made no request to be accompanied. On that basis alone the right was not engaged and the EAT did not need to decide whether the meeting was a disciplinary hearing rather than the “performance review meeting” the respondent contended it was.

The EAT rejected the argument that an employer should not be able to sidestep the right by concealing the nature or possible outcome of a meeting. The statutory wording is unambiguous: there must be a request. The legislation does not impose a general duty on employers to tell a worker that they have the right to be accompanied. The EAT noted that if this is a gap in protection that ought to be filled, it is a matter for Parliament. Separately, the government has already committed to reviewing the statutory right to be accompanied, so future reform may follow.

Learning points

This decision turned on the statutory wording of the right to be accompanied as it applies in the narrow set of circumstances that arose in this case. It should not be taken as an endorsement of holding disciplinary meetings without warning or without informing workers of their right to be accompanied.

The Acas Code of Practice recommends that employers notify workers in writing of the allegations, the purpose of the meeting, its possible consequences and their right to be accompanied. Although a failure to follow the Code will not, by itself, give rise to a standalone claim, it may be relevant when an employment tribunal considers the overall fairness of a dismissal. Employers should therefore continue to follow the Acas Code and ensure their disciplinary and grievance procedures clearly explain workers' right to be accompanied.

For more information or advice, please get in touch with Matt Verrier in our Employment team.