Background
Leonardo Wolfe worked for Taka Mayfair Limited, a restaurant operator, as a Head Sommelier/Manager from 21 December 2022 until 21 January 2023. He alleged that, without advance warning or an explanation of the meeting’s purpose, the restaurant’s owners spoke with him face to face after a shift and dismissed him at the end of the discussion.
Wolfe sought permission to amend his Employment Tribunal claim to add complaints of indirect discrimination and breach of the right to be accompanied under section 10 of the Employment Relations Act 1999. The tribunal refused both amendments. Only the challenge concerning the right to be accompanied was permitted to proceed on appeal. Wolfe accepted that he had not requested a companion, but argued that the employer’s failure to disclose the meeting’s nature deprived him of a reasonable opportunity to exercise the right.
The Court’s Holding
The Employment Appeal Tribunal dismissed the appeal. Section 10 applies only when a worker is required or invited to attend a qualifying disciplinary or grievance hearing and reasonably requests to be accompanied. Because Wolfe made no request at all, the statutory condition in section 10(1)(b) was not satisfied and the employer’s duties under the remainder of section 10 never arose.
The EAT held that the statutory language was unambiguous and could not be expanded by reference to parliamentary purpose, Convention rights, or the ACAS Code. Although the Code says that employers should explain disciplinary allegations and possible consequences and advise employees of their right to be accompanied, noncompliance with the Code does not itself create liability under section 10. The proposed claim was therefore bound to fail, and the tribunal had properly refused the amendment.
Key Takeaways
- A worker must make a reasonable request to be accompanied before the specific rights and employer obligations under section 10 of the Employment Relations Act 1999 arise.
- The requirement applies even when the employer has not disclosed the meeting’s disciplinary nature or possible outcome and the worker realizes too late that the right may have applied.
- The ACAS Code may be relevant to issues such as the fairness of a dismissal, but it cannot displace the express statutory requirement that the worker request a companion.
Why It Matters
The decision resolves for the first time in the EAT whether section 10 protects a worker who made no request because the employer allegedly concealed the nature of the meeting. It establishes that section 10 does not itself close that potential gap: absent a request, there is no standalone claim for breach of the right to be accompanied.
Employers may still face consequences under other employment-law principles for failing to explain a disciplinary meeting or follow the ACAS Code. But any broader statutory protection for workers who lack a meaningful opportunity to request accompaniment must come from Parliament.