When is the right of accompaniment triggered?

A recent Employment Appeal Tribunal (EAT) case has handed down a decision relating to the right of accompaniment under section 10 Employment Relations Act 1999. The case highlights that a claim for breach of section 10 can only succeed where a worker has made a request to be accompanied at a relevant meeting and where such a request has been denied. This article explores this decision and how this corresponds with the duties under the ACAS Code of Practice on Disciplinary and Grievance Procedures.

Background

The case of Wolfe_v_Taka_Mayfair_Ltd__2026__EAT_106 concerned the refusal by the Employment Tribunal to allow Mr Wolfe to amend his claim to include a claim alleging a breach of the right to be accompaniment at a disciplinary/grievance meeting under section 10 of the Employment Relations Act 1999.

The Claimant, Mr Wolfe, had been employed by the Respondent, Taka Mayfair Limited as a Head Sommelier/Manager in their restaurant for a period of a month between December 2022 and January 2023. As part of his case, Mr Wolfe said that following the end of a shift one evening and without any prior warning, the two owners of the restaurant met with him and as a result, Mr Wolfe was dismissed.

In the Employment Tribunal, Mr Wolfe attempted to bring claims of unfair dismissal, disability discrimination and failure to pay notice pay, but at a preliminary hearing Mr Wolfe withdrew his notice pay claim and was ordered to pay a deposit for each of his remaining claims. Mr Wolfe made one single deposit payment, which he confirmed was in relation to his disability related harassment claim. On this basis, the Employment Tribunal dismissed the Mr Wolfe’s other claims of unfair dismissal and direct discrimination on account of non-payment of the deposits. Following this, Mr Wolfe made an application to amend his claim to include breach of the right to be accompanied at a disciplinary/grievance meeting under section 10.

This application was considered by Employment Judge Gidney who decided that such application should not be allowed to proceed because the claim would be “doomed to fail”. Judge Gidney examined the provisions of section 10 Employment Relations Act 1999 which are as follows:

Section 10 Right to be accompanied.

(1) This section applies where a worker:
- (a) is required or is invited by his employer to attend a disciplinary or grievance hearing; and
- (b) reasonably requests to be accompanied at the hearing.

Judge Gidney set out that the legislative wording meant that there were two gateway requirements for this statutory right of accompaniment to be engaged. The first is that there needed to have been an invitation to a disciplinary or grievance hearing, and the second that the worker requests a right of accompaniment at such a hearing.

In Mr Wolfe’s case, Taka Mayfair Limited argued the relevant meeting was a performance review meeting and not a disciplinary meeting so section 10(1)(a) was not engaged. Mr Wolfe disputed this and Judge Gidney took the Mr Wolfe’s case at his highest on this point because he went onto decide that his case would ultimately fail on the second limb of the test as Mr Wolfe had been commendably honest by confirming that he had, at no time, made such a request.

EAT decision

Mr Wolfe appealed this decision. He said that because Taka Mayfair Limited did not make him aware of the nature, or purpose, of the meeting in advance, he could not have understood that it could have resulted in his dismissal. In light of this, he sought to argue that he was both denied the opportunity of exercising his right of accompaniment under section 10 and did not get a reasonable opportunity to do so. Mr Wolfe argued that it could not be correct that Parliament had intended that an employer could circumvent the right of accompaniment by not advising a worker of the nature of a meeting, or its potential outcome. As part of his argument, Mr Wolfe raised that there is an imbalance of power between employers and workers and that workers should not have to second guess the nature or purpose of meetings.

The appeal was considered by His Honour Judge Auerbach, who ultimately agreed with Judge Gidney’s position that as a matter of construction of section 10, both sections 10(1)(a) and 10(1)(b) must apply for the right to be engaged, and that as Mr Wolfe had made no request to be accompanied, section 10(1)(b) was not engaged.

Part of Mr Wolfe’s appeal had been that that an employer must act reasonably given section 10(1)(b) requires a worker to “reasonably request” the right of accompaniment. Judge Auerbach did not consider this argument had any merits given that it had plainly been open to Parliament to impose a requirement of reasonableness on an employer in such a scenario but did not.

Judge Auerbach also addressed part of Mr Wolfe’s grounds of appeal where he set out that the ACAS Code of Practice on Disciplinary and Grievance Procedures had been breached on account of the fact that he had neither been informed in writing about the meeting and its possible consequences, nor advised of his right of accompaniment. Judge Auerbach dismissed this part of the appeal by highlighting that the ACAS Code is not a statute and that section 207(1) Trade Union And Labour Relations (Consolidation) Act 1992 says that a failure to observe the ACAS Code does not render a person liable to proceedings.

Comment

Employers who are generally well versed in offering the right of accompaniment may be looking at this judgement and wondering why the provisions of the ACAS Code say that employees should be advised of their right of accompaniment when this is not required under the statutory construction of section 10. However, it must be remembered that whilst not advising an employee of their statutory right may not result in a successful breach of section 10 claim, it is likely to be considered by an Employment Tribunal in an unfair dismissal claim when considering the overall reasonableness of a process followed by an employer, which could have greater consequences where such a finding is made.

It therefore remains good practice and an important step in any disciplinary or grievance procedure to ensure that this right of accompaniment is highlighted to workers and allowed, where such requests are reasonable.

An interesting part of this case is that Taka Mayfair Limited chose not to participate in the appeal before the EAT, citing that they wished to preserve costs. Given that the award for any successful breach of section 10 claim is capped at a maximum of two weeks’ pay it is perhaps unsurprising that they took this approach.

In the final line of his judgement, Judge Auerbach said that if the fact that section 10(1)(b) requires a worker to actually make a request to be accompanied presents a gap in the statutory protection that Parliament intended, then it is a matter for Parliament to address. There’s no suggestion that this is on the Government’s agenda currently and given their priorities under the Employment Right Act 2025, it is unlikely that any changes on this point will be forthcoming.