Does a worker have to request a right to be accompanied even if the employer does not tell them the purpose of the meeting?

By Jo Seery, Professional Support Lawyer

Background

Mr Leonardo Wolfe was employed by Taka Mayfair Limited, a restaurant business, as Head Sommelier/Manager for a brief period between December 2022 and January 2023. Following the end of a shift, he was called into an unexpected face-to-face meeting with the restaurant’s owners. According to Mr Wolfe, he was not told in advance that the meeting was disciplinary in nature or that it could result in his dismissal. At the conclusion of the meeting, he was dismissed.

Mr Wolfe later sought to amend his Employment Tribunal claim to include a complaint that his statutory right to be accompanied under section 10 of the Employment Relations Act 1999 had been breached. He accepted, however, that he had not requested to be accompanied at the meeting. He argued that this was because the employer had not explained the purpose of the meeting, meaning he did not realise his right to request a companion until it was too late. The Tribunal refused the amendment on the basis that the proposed claim had no reasonable prospect of success, and Mr Wolfe appealed to the Employment Appeal Tribunal (EAT).

Outcome

The EAT accepted that Mr Wolfe’s argument highlighted a potential weakness in the legislation. An employer may fail to explain the true nature of a meeting, leaving a worker unaware that they should request representation. However, the Tribunal stressed that the wording of the statute is clear and unambiguous: without a request, there is no right to be accompanied. The EAT rejected arguments based on the purpose of the legislation, the ACAS Code of Practice and human rights principles, concluding that these could not override the express statutory requirement for a worker to make a request. If there is a gap in the protection afforded by the legislation, the EAT said it is for Parliament, not the courts, to address it. 

Comments / Key takeaways

The only surprising thing about this decision is that the right to be accompanied has been in place for 25 years and this is the first time that this point has been considered by the EAT – probably because the statute is so very clear on this point. As the original Employment Tribunal decision notes this claim was ‘doomed to fail.’

Nevertheless, this decision provides a reminder that the statutory right to be accompanied is not automatic. Workers must actively request accompaniment before the right arises. Where no request is made, an employer cannot be held liable under section 10, even where the worker was unaware that the meeting was disciplinary or potentially disciplinary in nature. 

The judgment may be seen as highlighting a significant gap in worker protections. While the ACAS Code recommends that employers notify workers of disciplinary meetings and inform them of their right to be accompanied, a failure to follow that guidance does not in itself create liability under section 10. The case highlights a weakness of the statutory framework and reinforces the importance of workers seeking representation at the earliest opportunity where disciplinary action may be contemplated – even as a mere theoretical possibility. 

Impact of the decision

For trade unions, the decision underlines the importance of educating members about their right to be accompanied and encouraging them to request representation whenever there is uncertainty about the purpose of a meeting with management. Workers, particularly those with limited service or in precarious employment, may be vulnerable where employers fail to make the nature of meetings clear in advance. 

The judgment may also encourage calls for reform of section 10 of the Employment Relations Act 1999 as part of this government’s wider shake-up of workplace rights. Until any legislative change is made, unions should continue to press employers to comply with the ACAS Code, provide clear notice of disciplinary meetings and ensure workers are informed of their right to representation before potentially career-altering decisions are taken.