Key takeaways
Statutory right depends on worker request
Statutory accompaniment right only arises after a reasonable request.
Gap in protection must be filled by parliament
Employer not obliged to notify worker of their right to be accompanied.
Best practice remains to give notice
Failure to notify may affect fairness of dismissal and increase compensation.
Workers have a statutory right to be accompanied at disciplinary or grievance hearings, subject to two conditions:
the worker must be required or invited by the employer to attend a disciplinary or grievance hearing and
the worker must reasonably request to be accompanied at the hearing (s10 Employment Relations Act 1999).
The EAT has recently considered the scope of this right and ruled that a worker must request to be accompanied, even where the nature of the meeting is unclear until they are dismissed.
W was employed as head sommelier at a restaurant for around a month. Following the end of a shift, without any advance warning and with no indication of the purpose of the meeting or the fact he might be dismissed, the restaurant owners called W into a meeting and dismissed him. W filed an employment claim, which he later sought to amend to include a complaint that the restaurant had breached his statutory right to be accompanied. The tribunal dismissed W’s application to amend on the basis that the claim was bound to fail because W had not requested to be accompanied (i.e. met condition 2 outlined above).
The EAT dismissed W’s appeal and upheld the tribunal’s decision. Both conditions must be met before the right to be accompanied applies. The tribunal was therefore correct to conclude that, because W had not asked to be accompanied, he could not bring a claim relying on this right. A worker could make a reasonable request during a meeting once its purpose became apparent, but that did not assist W because he had not made any such request. The EAT noted that the clear wording of the legislation made the right to be accompanied conditional on the worker proactively making a request for accompaniment and had imposed no duty on employers to notify workers of the right. If this left a gap in protection for workers, that was a matter for parliament.
Whilst the EAT has clarified that, in relation to a claim for failure to comply with the statutory right to be accompanied employers have no duty or obligation to notify the employee of their right, it remains best practice to do so. The EAT noted that ’A failure to do so may have other consequences for an employer, for example, in the context of an unfair dismissal complaint.’ In particular, the Acas Code of Practice on Disciplinary and Grievance Procedures confirms that notifications of disciplinary hearings should ’advise the employee of their right to be accompanied at the meeting’ (¶10) and, should an employee succeed in a relevant employment claim, failure to follow this Code of Practice can result in up to a 25% compensation uplift.
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