This issue has been considered for the first time in its 25 year history by His Honour Judge Auerbach in Wolfe v Taka Mayfair in the Employment Appeal Tribunal (EAT).
Section 10 of the Employment Rights Act 1999 confers the right for a worker to be accompanied if called to attend a grievance or disciplinary hearing if the worker reasonably requests to be accompanied, s.10 (1)(b).
The point here is that the right only arises if the worker requests a companion.
In this case Mr Wolfe was a manager and head sommelier at the respondent’s restaurant in Mayfair. He was called into a meeting after his shift. No warning of the meeting was given and he was not told the purpose of the meeting. At the end of the meeting he was dismissed. He had not asked to be accompanied because he was not aware that the meeting might end in his dismissal.
Mr Wolfe brought claims in the Employment Tribunal and subsequently wanted to make an Application to Amend to add a claim that his employer had breached his section 10 ERA 1999 right to be accompanied. The EAT had no issue dismissing his appeal on this point.
This appears to be the first time this section has been the subject of an appeal in the 25 years since it came into force.
The EAT held that the right only arises if the worker asks for a companion. If no request is made there is no right. There is no implied duty on employers to explain what a meeting is for or to flag that there is a right to be accompanied. Failure by the employer to explain the purpose of a meeting may go against it in an unfair dismissal claim but it does not breach section 10.
If a request is made during a meeting once the purpose of the meeting becomes clear this might invoke the right. Any employer faced with this situation may wish to pause the meeting to allow a companion to be brought in.
For a worker called to a meeting it will be prudent to ask the purpose of the meeting in advance and to raise whether a companion may be brought along.
