The Employment Appeal Tribunal (EAT) has made a landmark decision regarding an employee's statutory right to be accompanied at disciplinary and grievance hearings under section 10 of the Employment Relations Act 1999.

In Wolfe v Taka Mayfair, W was employed as a manager in a restaurant. Based on his account, he was called into a meeting at the end of his shift, without notice or details of its purpose, at the conclusion of which he was dismissed. Although, by his own admission, he was aware of the statutory right to be accompanied, he did not realise it was necessary on this occasion and therefore did not exercise that right. He brought a claim before the Employment Tribunal, arguing that the employer had breached his rights by failing to advise him of his right to be accompanied. The claim was rejected, and W appealed to the EAT.

At the hearing, the Judge emphasised that the legislation was clear. Section 10 explicitly requires the employee to make a request to be accompanied. The statute leaves no room to imply a duty on employers to explain the nature of the meeting or to advise employees of this right. If no request is made, the statutory right is not engaged.

Although the employer's silence could count against them in unfair dismissal proceedings, it does not amount to a breach of the statutory right to be accompanied. It was acknowledged that an employer could deliberately avoid triggering the right by remaining silent about the nature of the meeting. However, the EAT emphasised that it was required to apply the law as written. The Judge stated:

"...I do not think it can be inferred from the wider scheme of the legislation that Parliament must have intended that what the claimant contended happened in this case should be treated as amounting to a breach of the rights conferred under section 10."

The EAT concluded that any such discrepancy would need to be addressed by Parliament.

The Tribunal also acknowledged that the ACAS Code of Practice recommends that employers should inform employees of their right to be accompanied. However, it went on to note that the Code is not statutory. A failure to follow the Code does not automatically create liability where the express requirements of the legislation have not been met. Section 207(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 provides that a failure to observe the Code does not, of itself, render a person liable, although it may be relevant in other circumstances.

This ruling serves as a reminder that the right to be accompanied is a specific statutory entitlement that depends upon the employee making a request. However, as a matter of good HR practice, and in line with the ACAS Code of Practice, employers are advised to inform employees of their right to be accompanied at disciplinary and grievance meetings.

Employers are advised to contact the HR Helpline on 01455 852 028 to obtain professional advice, remain compliant, and minimise the risk of claims and Employment Tribunal litigation.