The statutory right to be accompanied to a disciplinary or grievance hearing is strictly triggered...
Right to be accompanied
The statutory right to be accompanied to a disciplinary or grievance hearing is strictly triggered by the employee’s request. No request equals no right.
Background
Mr Wolfe worked in TM’s restaurant. The owners called him into a meeting after a shift, without warning and without explaining the purpose of the meeting. At the end of it he was dismissed. He never asked to be accompanied, because he did not realise until too late that the meeting could end in his dismissal.
Mr Wolfe brought a tribunal claim which he then tried to amend to include a complaint that TM had breached his statutory right to be accompanied under s. 10 of the Employment Relations Act 1999. He argued that, as he had not known the purpose of the meeting at which he was dismissed, he had been deprived of the opportunity to request accompaniment. A tribunal refused Mr Wolfe’s requested amendment. He appealed.
EAT decision
The appeal was dismissed.
The EAT focused on the statutory wording. The statutory right to be accompanied under s. 10 arises only where two conditions are met: the worker is required or invited to attend a disciplinary or grievance hearing and the worker ‘reasonably requests’ to be accompanied.
If no request is made, the right cannot arise, regardless of whether the worker was informed in advance to the nature of the meeting. The statute is clear, leaving no room to imply a duty on employers to explain what a meeting is for or to flag the right.
Comment
While the ACAS Code recommends informing employees of their right to be accompanied in disciplinary and grievance proceedings, s. 10 itself is not framed to oblige an employer to advise on those rights. Failing to do so might have other repercussions, such as rendering a dismissal unfair, but it does not breach s. 10.
It’s arguable that the current statutory wording gives bad employers a route to circumvent the right by withholding the very information that would prompt a worker to exercise it. However, as the EAT noted, if the current law is perceived as a gap in statutory protection, it is a matter for Parliament to fill.