Understanding the right to be accompanied

A recent case highlights the current technicalities around a worker’s right to be accompanied.

In the case of Wolfe v Taka Mayfair Ltd, Wolfe was the Head Sommelier at the Taka Mayfair restaurant in London. He was called in for a meeting with the owners at the end of his shift, and was dismissed. Wolfe had not been informed of the purpose of the meeting or even the potential outcome.

Although Wolfe’s one month of service meant he was unable to bring a claim of ordinary unfair dismissal, he did instead make a claim to the tribunal of breaching the statutory right to be accompanied. As Wolfe had not been made aware of the meeting’s purpose, or given any notice, he argued that he was unable to bring a companion, thus breaching his right to be accompanied.

However, the Employment Tribunal (ET) dismissed the claim, citing that the requirements for the statutory right to be accompanied, under Section 10(1) of the Employment Relations Act 1999, are as follows:

(i) The worker must be invited or required to attend a disciplinary or grievance hearing; and
(ii) The worker must make a reasonable request to be accompanied.

As Wolfe had not made a request to be accompanied in the meeting, the claim could not be successful. Wolfe appealed to the Employment Appeal Tribunal (EAT).

The EAT agreed with the ET’s ruling but acknowledged that, if Wolfe had requested to be accompanied, this could have become a duty for the employer.

Wolfe went on to argue that the employer had breached the Acas Code of Practice in their failure not to provide any notice in writing or outline his right to be accompanied; however, the EAT identified that the Acas Code of Practice was not law.

It is important to recognise that, had Wolfe had sufficient service, he would’ve been able to make an unfair dismissal claim, and the lack of notice in writing and the right to be accompanied would have contributed significantly to the facts of this claim.

The current statutory right limits the right for employees and workers to be accompanied to certain meetings; namely those that may result in a warning or an action (such as demotion or dismissal), or the appeal meeting. Companions must also either be a colleague, trade union representative or an official who is employed by the trade union to act as a companion for such meetings.

Employees are also permitted to propose an alternative time for the meeting (before the end of five working days) if their companion is unavailable.

Therefore, while the case of Wolfe vs Taka Mayfair Ltd suggests that the worker has to request the right to be accompanied, there are still plenty of obligations on the part of the employer, and good practice would suggest allowing companions beyond statutory requirements.

There are now also prospective changes to the Acas Code of Practice, with a consultation looking at expanding statutory rights and identifying the employer’s obligation to make reasonable adjustments for workers with disabilities (as per the Equality Act 2010), which can include allowing a support worker or interpreter to act as a companion.

The right to be accompanied only applies if a worker asks for it. Telling staff about the right upfront, rather than waiting to be asked, protects you if a decision is challenged later. Contact Solutions for HR to review your disciplinary and grievance procedures.