By Joanne Bell & Hilary Larter
|Published 11 August 2026
In this case, the EAT confirmed that the statutory right to be accompanied at a disciplinary or grievance hearing is conditional on the worker having made a reasonable request to be accompanied. That is so, even in a case, such as this, where the reason the worker did not make a request is that the employer failed to explain the nature or purpose of the meeting, with the result that the worker did not appreciate that the right might apply until it was too late to invoke it.
The right to be accompanied at a disciplinary or grievance meeting is contained in section 10(1) of the Employment Relations Act 1999.
The statutory right arises only where two conditions are met:
(1) the worker is required or invited to attend a disciplinary or grievance hearing; and
(2) the worker “reasonably requests” to be accompanied.
Where both conditions are met, the employer must permit the worker to be accompanied by a chosen companion (a trade union representative or colleague) who may address the hearing, put the worker's case and confer with the worker.
The claimant, Mr Wolfe, had been employed by Taka Mayfair Limited, which runs a restaurant, as a head sommelier/manager from 21 December 2022 to 21 January 2023. Following the end of a shift, and without advance warning, the two owners of the restaurant had a face-to-face discussion with him, without explaining the meeting's purpose, or what might happen. At the end of the meeting he was dismissed.
Mr Wolfe brought a claim against his ex-employer in the employment tribunal, which he then tried to amend to include a complaint that his ex-employer had breached his statutory right to be accompanied. The tribunal refused Mr Wolfe’s requested amendment on the basis that both limbs of section 10(1) had to be satisfied and, since Mr Wolfe accepted that he had made no request at the time, the complaint was bound to fail. Mr Wolfe then appealed to the EAT.
The EAT dismissed the appeal and upheld the tribunal’s decision.
On appeal, Mr Wolfe argued that construing section 10 so strictly created a loophole allowing an employer to defeat the right simply by concealing the disciplinary character of a meeting, and that this could not have been Parliament's intention given the imbalance of power between the employer and the worker at meetings of this kind. Mr Wolfe also made arguments based on the ACAS Code of Practice on Disciplinary and Grievance Procedures (the ACAS Code), and the European Convention on Human Rights.
The EAT rejected all these arguments and focused on the wording of section 10. The EAT found that there was no ambiguity in the second condition: if no request is made, the right cannot arise, regardless of whether the worker was informed in advance of the nature of the meeting. If the wording of the statute is unambiguous it is not relevant to delve into the intention of Parliament. The EAT noted that if the result represented a gap in statutory protection, it fell to Parliament rather than the tribunals to address it, by way of legislation.
The EAT did observe that a worker who only appreciated the nature of a meeting once it was underway might still be able to make a reasonable request at that stage, but that did not assist Mr Wolfe, who had made no request at any point.
The EAT also recognised that an employer's failure to notify an employee of their right to be accompanied may be relevant in an unfair dismissal claim, but that issue did not arise here as Mr Wolfe lacked the qualifying service required to bring such a claim.
In one sense the decision is helpful for employers, in that it confirms that the statutory right to be accompanied, and the remedies for its breach, are only engaged where the worker has made a reasonable request to be accompanied.
However, as the EAT noted, a failure to notify workers of their right to be accompanied may have other consequences for an employer, in particular in the context of an unfair dismissal complaint. The ACAS Code recommends that employers inform workers, when inviting them to a disciplinary hearing, of the alleged misconduct, its possible consequences, and the right to be accompanied. Tribunals will take non-compliance with the ACAS Code into account when assessing the procedural fairness of a dismissal. The practical takeaway is therefore unchanged: employers should give workers clear written notice of the purpose and possible outcomes of any disciplinary or grievance hearing, expressly remind them of their right to be accompanied, and allow them a proper opportunity to exercise that right.
It is worth noting that the government has recently launched a review of the right to be accompanied and this decision may well feature in that review as an example of the gap in protection. The review will be broad in scope and will consider section 10 in its entirety. The government has set out four stated aims for the review: to understand awareness of the right by employers and workers; to assess stakeholders' understanding of the right; to evaluate how the right is presently being used; and to consider the appropriateness of the current list of companions.
The review will draw on the available evidence together with stakeholder feedback on how the right currently operates, including from trade unions, business representative organisations, interested parliamentarians, businesses and other employer representatives. It is expected to run for six months, with the findings published in Parliament on completion.
One other point of note is that on 30 July 2026, ACAS launched a consultation on an updated draft of the ACAS Code. See our recent article here. The draft Code makes clear that there is no statutory right to be accompanied at informal meetings or investigation meetings. However, it notes that this may be allowed under the employer's own procedure or to help avoid unlawful discrimination. It also states that if a worker requests to be accompanied to a meeting where the statutory right does not apply, it is good practice for the employer to consider this request.
