What happens if you call an employee into a meeting, don’t tell them it could end in dismissal, and they don’t ask to bring anyone with them?
According to the Employment Appeal Tribunal in the recent case of Wolfe v Taka Mayfair, you haven’t breached their statutory right to be accompanied.
That may sound like good news for employers. In practice, however, it is probably better viewed as a reminder that complying with the bare letter of the law and running a fair HR process aren’t necessarily the same thing.
No request, no right
Under section 10 Employment Relations Act 1999, workers have the right to be accompanied at certain disciplinary and grievance hearings by a work colleague, trade union official or certified union representative. The employee doesn’t need to belong to the union, and the employer doesn’t need to recognise it.
But there is an important condition: the worker must reasonably request to be accompanied.
That was decisive in Wolfe. Mr Wolfe said he was called into a meeting after a shift without warning or any explanation of its purpose. By the end of the meeting, he had been dismissed. He hadn’t asked to bring a companion because, on his case, he didn’t know he was walking into a meeting which could result in his dismissal. The EAT nevertheless held that his right to be accompanied had not been breached. The wording of the legislation is clear: the right arises where the worker makes a reasonable request. No request, no statutory right.
Interestingly, the EAT left open the possibility that an employee might make the necessary request during a meeting, once it becomes apparent what the meeting is really about.
Legal right versus sensible process
This is where the distinction between legal entitlement and good HR practice becomes important.
Wolfe does not mean employers should start inviting employees to disciplinary meetings without telling them what they are about. The EAT expressly recognised that an employer’s failure to explain the nature of a meeting or alert an employee to their right to be accompanied may be relevant when deciding whether a subsequent dismissal was fair.
And there may be other reasons to allow a companion even where section 10 doesn’t strictly require it. Your own disciplinary or grievance procedure may provide wider rights. In some circumstances, allowing a family member, support worker or other person to attend could also be appropriate, including as a reasonable adjustment for a disabled employee.
A few practical points worth remembering
Where the statutory right does apply, the companion isn’t simply there for moral support. They can address the hearing, put and sum up the worker’s case, respond on their behalf to views expressed and confer privately with them. They cannot, however, answer questions on the worker’s behalf if the worker is required to answer them personally.
If the chosen companion can’t attend, the worker can propose a reasonable alternative time within five working days. Depending on the circumstances, refusing a slightly longer postponement may still create unnecessary procedural risk.
An unreasonable refusal of the statutory right can result in compensation of up to two weeks’ pay. But the bigger concern is often what that refusal says about the fairness of the process more generally.
The lesson from Wolfe is therefore slightly counterintuitive. Employers may not have a legal duty to tell employees that they can bring a companion before the right has been requested. But good employers should generally tell them anyway.