EAT confirms right to be accompanied requires an actual request, even where employer withheld meeting's purpose

The Employment Appeal Tribunal has held that the statutory right to be accompanied at a disciplinary or grievance hearing cannot be engaged unless the worker actually makes a request to be accompanied, even where the employer's failure to explain the meeting's purpose left the worker unaware that the right applied until it was too late to exercise it.

In Wolfe v Taka Mayfair Limited [2026] EAT 106, His Honour Judge Auerbach dismissed an appeal by Leonardo Wolfe, a former Head Sommelier and Manager at a Mayfair restaurant, against an employment tribunal's refusal to allow him to amend his claim to add a complaint under section 10 of the Employment Relations Act 1999. Mr Wolfe's case was that, at the end of a shift and without warning, the restaurant's two owners held a face to face meeting with him, without explaining its purpose or likely outcome, at the end of which he was dismissed. He accepted before the tribunal that he had not requested to be accompanied at that meeting.

Section 10(1) provides that the right to be accompanied applies where a worker is required or invited to attend a disciplinary or grievance hearing and reasonably requests to be accompanied at it. Employment Judge Gidney, at first instance, held that both limbs of that provision had to be satisfied, and that since Mr Wolfe accepted he had made no request, any complaint under section 10 was bound to fail regardless of how the first limb, concerning the nature of the meeting, might have been resolved. The amendment was accordingly refused.

On appeal, Mr Wolfe argued that construing the provision so strictly created a loophole allowing employers to defeat the right simply by concealing a meeting's disciplinary character, and that this could not have been Parliament's intention given the purpose of redressing the inherent imbalance of power between employer and worker. He submitted that a worker should not be expected to make speculative or precautionary requests, particularly given the practical and reputational risks of doing so.

His Honour Judge Auerbach rejected these arguments. He held the statutory wording was unambiguous: a reasonable request was a precondition to any of the employer's obligations under the remainder of section 10, and there was no scope for interpreting the section as importing a broader reasonableness obligation on employers, nor for resorting to Parliamentary purpose or Hansard material where the language admitted no genuine ambiguity. He noted, without needing to decide the point, 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 observed this could not assist Mr Wolfe, who made no request at any point. The judgement also rejected arguments based on the ACAS Code of Practice, noting that non-compliance with the Code does not itself found a free-standing statutory breach, and Convention rights arguments under Articles 6 and 11, finding neither provided a basis for reading additional words into section 10(1)(b).

The judge concluded that if this represented a gap in statutory protection, it fell to Parliament rather than the tribunals to address it, and the appeal was dismissed.