Don't ask, don't get: EAT clarifies the right to be accompanied
The EAT has considered whether an employee can bring a claim for breach of the duty to be accompanied where he wasn't told about the purpose of the meeting and didn't ask to bring a companion.
21.08.2026
Wolfe v Taka Mayfair Ltd is the first EAT authority to consider this point and is an important decision.
The law
Employees in England and Wales have a statutory right to be accompanied at most disciplinary and grievance hearings under section 10 of the Employment Relations Act 1999. There is no qualifying service and the right applies to workers as well as employees.
Workers can bring a standalone claim under section 11 where an employer fails to comply with these rights. If they are successful, a tribunal will award compensation of up to two weeks' pay, which is capped at the current rate of £751.00 per week.
Background
In this case Mr Wolfe worked for Taka Mayfair Ltd as head sommelier and restaurant manager. At the end of a shift, he was called into a meeting with the restaurant's owners, during which he was dismissed. He wasn't told in advance what the meeting was about, or that he might be dismissed. He only had two months service and couldn't therefore bring an ordinary unfair dismissal claim.
Mr Wolfe brought a claim in the employment tribunal. He later tried to amend this to argue that his employer had breached his statutory right to be accompanied.
Tribunal decision
The tribunal refused Mr Wolfe's application. It noted that section 10(1) has two key requirements:
- The worker must be invited or required to attend a disciplinary or grievance hearing; and
- make a reasonable request to be accompanied.
Mr Wolfe did not ask to be accompanied and the tribunal concluded that his claim would fail. He appealed.
EAT decision
The EAT agreed with the tribunal and dismissed the appeal. It said the wording of section 10(1) is clear: both requirements must be met before the right applies.
The EAT held that Mr Wolfe didn't ask to be accompanied and, therefore, hadn't made a valid request under s10. He couldn't complain that his employer had failed to meet duties that had not yet arisen.
Employers do not have to tell employees about the right
Mr Wolfe argued that, because the worker's request must be "reasonable", employers should also have to act reasonably by telling workers what the meeting is about and what could happen.
The EAT rejected that argument. It found that section 10 does not create a general duty on employers to act reasonably.
The EAT noted that a worker could still make a valid request during a meeting if it becomes clear that the meeting is disciplinary. It said that if that happened, the employer's duties may be triggered at that point. But this did not help Mr Wolfe because he did not make a request at any stage.
ACAS Code cannot override the legislation
Mr Wolfe argued that his employers had breached the Acas Code of Practice by not notifying him in writing about what he was alleged to have done, or of his right to be accompanied at the meeting.
The EAT said that the problem with this line of argument was that the Code was not law, and it could not disapply the clear wording of the legislation.
Practical implications for employers
It's easy to see why Mr Wolfe felt aggrieved. He wasn't told what the meeting was about and had no reason to think he needed to be accompanied. He argued that the tribunal's decision exposed a loophole in the legislation because an employer can avoid liability by keeping an employee in the dark until it is too late for them to exercise their rights.
The EAT's answer was straightforward: that may be a gap in the legislation, but it isn't one the courts can fill. Section 10 is clear. The right to be accompanied only arises if the employee makes a reasonable request to be accompanied. Mr Wolfe didn't make a request, so the statutory right never arose. The EAT had no real room to reach a different conclusion, however sympathetic it may have been to his situation.
That does not mean employers can safely hold disciplinary meetings without warning or avoid telling employees about their rights to be accompanied. Mr Wolfe did not have enough service to bring an ordinary unfair dismissal claim. Had he been able to do so, the lack of notice about the purpose of the meeting and his right to be accompanied would have been considered by the tribunal when assessing the fairness of the dismissal.
Employers should also remember that the ACAS Code of Practice on disciplinary and grievance procedures recommends informing employees of their right to be accompanied and allowing them to exercise it. A failure to follow the Code can lead to an uplift of up to 25% on any compensation awarded by a tribunal.
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