In Wolfe v Taka Mayfair Ltd, the claimant worked as a head sommelier/manager in the respondent's restaurant. One month into his employment, he was called into a meeting at the end of a shift and dismissed. He had been given no warning as to the purpose of the meeting. The claimant subsequently started Employment Tribunal proceedings against his ex-employer. He attempted to add a claim that his statutory right to be accompanied had been breached because he had been deprived of any meaningful opportunity to ask to be accompanied. This was not allowed on the basis that this claim was bound to fail. The claimant appealed to the Employment Appeal Tribunal ("EAT").
EAT judgment
The EAT upheld the Employment Tribunal's decision and dismissed the appeal. The statutory right to be accompanied arises when (1) a worker is required or invited to attend a disciplinary hearing; and (2) the worker "reasonably requests" to be accompanied. The claimant had not made a request to be accompanied. The right was therefore not triggered, so there had been no breach by the employer. In reaching its conclusion, the EAT rejected the argument that the right should be inferred where a worker is unaware of the nature of the meeting they are to attend.
What does this mean for employers?
Will we see Parliament taking steps to close this gap in protection? That remains to be seen. However, the EAT did note that, in the more than a quarter of a century that the right to be accompanied has been in place, this case appears to be the first occasion on which this particular point has fallen to be determined by the EAT.
Most employers give appropriate notice of meetings of this nature and often include an offer for the worker to be accompanied, without the need for the worker to initiate the statutory right by making a request. Doing so is in line with the recommendations in the Acas Code of Practice on disciplinary and grievance procedures ("the Code"), which an Employment Tribunal will take into account when considering the fairness of a dismissal. A failure to comply with the Code puts an employer at risk of an uplift being made to any compensation that is awarded.
The EAT made the point that, if this decision is thought to reveal a gap in the statutory protection that ought to be filled, then it was a matter for Parliament to do so. It seems unlikely that this will happen any time soon given the UK Government's very heavy workload as a result of the Employment Rights Act.
