Wolfe v Taka Mayfair [EAT] is a reminder of the requirements that must be satisfied before the right arises to be accompanied by a work colleague or trade union representative.
Facts
Mr Wolfe worked at Taka Mayfair Ltd’s restaurant as head sommelier and manager for approximately one month. He alleged that after his shift ended, the restaurant owners held a discussion with him, with no prior notice and without explaining the meeting’s purpose or possible outcome. At the end the meeting he was dismissed.
Employment Tribunal decision
He brought an employment tribunal claim and subsequently applied to amend it to add a complaint of breach of the right to be accompanied under section 10 Employment Relations Act 1999.
The tribunal noted that, for the right to be accompanied to arise, there had to be both an invitation by the employer to a disciplinary or grievance hearing and a request by the worker to be accompanied at it. Mr Wolfe accepted that he did not ask the restaurant owners to allow him to be accompanied at the meeting. The tribunal therefore rejected the amendment application because a section 10 claim had no prospects of succeeding.
Employment Appeal Tribunal agreed
Mr Wolfe appealed to the Employment Appeal Tribunal, arguing that, because his former employer failed to make him aware of the purpose of the meeting, he had not been given a reasonable opportunity to exercise the right to be accompanied. He argued that Parliament could not have intended to create a loophole which allowed an employer to circumvent the right to be accompanied by failing to inform the worker of the nature of a meeting.
The Employment Appeal Tribunal dismissed Mr Wolfe’s appeal. Section 10 sets out the two conditions that must be satisfied before the right to be accompanied will apply. The tribunal had therefore correctly concluded that, if a worker does not reasonably request to be accompanied, they cannot bring a complaint that the employer failed to comply with its obligations under the section. The Employment Appeal Tribunal also rejected Mr Wolfe’s argument that the fact that the worker must make the request ‘reasonably’ implied a reciprocal obligation on the employer to act reasonably, by informing the worker of the nature of the meeting. Parliament had not imposed a general obligation on employers to act reasonably.
The Employment Appeal Tribunal went on to say that where the wording of the legislation was unambiguous, there was no room to look beyond the wording to the underlying purpose. If there was any gap in the statutory protections, that was a matter for Parliament to address, not the tribunal.
Comment
It is, of course, best practice to give employees prior notice of disciplinary and grievance hearings and to inform them of their right to be accompanied to such meetings. Despite the result in this case, failure to do so could have adverse consequences. For example, if an employee is eligible to claim unfair dismissal, then failing to inform them of their right to be accompanied to a disciplinary hearing could result in a finding of unfair dismissal.
It is also worth noting that section 10 only requires the request to be accompanied to be reasonable. It does not require the choice of companion to be reasonable. If an employee makes a request to be accompanied by someone falling within the three permitted categories (a trade union official employed by the union; a trade union official who is certified in writing by the union as having the necessary experience or training to act as a companion; or another of the employer’s workers) then they will trigger the right to be accompanied. Even if their choice of companion is someone the employer would rather refuse such an official from a trade union that the employer does not recognise.
If you'd like support on any aspects regarding an employees' right to be accompanied at disciplinary meetings, please contact our expert employment law solicitors.
