Right to be Accompanied at a Disciplinary Hearing- EAT Confirms Employee Must Ask

A recent Employment Appeal Tribunal (EAT) decision has provided practical clarification on when the statutory right to be accompanied arises in disciplinary and grievance proceedings.  

In Wolfe v Taka Mayfair Ltd [2026] EAT 106, the EAT confirmed that an employer cannot be liable for breaching an employee’s right to be accompanied under section 10 of the Employment Relations Act 1999 unless the employee has first made a reasonable request to be accompanied.

Background

Mr. Wolfe was employed as head of sommelier and restaurant manager. He alleged that, at the end of a shift, he was unexpectedly called into a meeting with the restaurant’s owners. He was not told in advance what the meeting concerned and, according to his evidence, only realised during the discussion that his employment was at risk. By the end of the meeting, he had been dismissed.  

Mr. Wolfe later sought to amend his Employment Tribunal claim to add a complaint that his statutory right to be accompanied had been breached. However, he accepted that he had never asked to be accompanied, either before or during the meeting. The Tribunal refused the amendment on the basis that the claim was bound to fail and the EAT upheld that decision.

The EAT’s Decision

The EAT focused on the wording of section 10 of the Employment Relations Act 1999, which provided that the right to be accompanied arises where: 

1. The worker is required or invited by his employer to attend a disciplinary or grievance hearing; and
2. The worker reasonably requests to be accompanied.

The EAT held that these statutory conditions are clear and unambiguous. If an employee does not make a request to be accompanied, the statutory right is simply not engaged, regardless of the reason why no request was made.

Mr. Wolfe argued that because he had not been informed of the purpose of the meeting, he had therefore been deprived of the opportunity to exercise the right. However, the EAT rejected the suggestion that employers owe a reciprocal duty under section 10 to explain the nature of a meeting or notify employees of their right to be accompanied. Parliament had not imposed such an obligation in the legislation, and the courts could not read one into the statute.

The EAT did comment that it may be possible for an employee to make a valid request for accompaniment during a meeting once its disciplinary nature becomes apparent, although that point did not need to be decided in this case because Mr. Wolfe made no request at any stage.

What does this mean for employers?

The decision should be reassuring for employers facing section 10 claims. It confirms that liability for breach of the statutory right to be accompanied will generally only arise where an employee has explicitly requested accompaniment.

Employers should, however, be cautious about viewing the judgment as a license to conduct unannounced disciplinary meetings. While a failure to notify an employee of the purpose of a meeting may defeat a standalone section 10 claim, it could still be highly relevant when assessing the overall fairness of dismissal. The ACAS Code of Practice recommends informing employees of the allegations against them, the purpose of the disciplinary meeting and their right to be accompanied. A failure to follow the Code can increase the risk of an unfair dismissal finding and, in some cases, an uplift in compensation of up to 25%.

Practical Implications

Best practice remains unchanged, employers should continue to invite employees to disciplinary and grievance hearings in writing, explain the purpose of the meeting and remind employees of their right to be accompanied. Doing so not only promotes procedural fairness but also reduces the risk of wider employment claims.

For more information on how the EAT’s decision may affect you, contact our employment team.