Transcription

• Speaker #0

  Today in the Indicator HR and Employment Law podcast, we're discussing the judgment in the case of Wolfe and Taka Mayfair Limited, in which the Employment Appeal Tribunal was asked to determine whether an employee had been deprived of his right to be accompanied at a disciplinary hearing that he had been given no notice of, and where the employee had not requested to bring a companion. In this case, W had been working as T's head sommelier and manager for one month when, at the end of a shift, he was called into a meeting with the two owners. He was given no notice of the meeting and had no idea what it was about. At the end of the discussion, W was dismissed. He brought a tribunal claim, subsequently applying to amend his claim to include a right to be accompanied complaint. The Employment Tribunal refused his application, finding that the right did not arise because W had not made a reasonable request to be accompanied. W appealed, arguing that he had been denied the opportunity to ask, because he had not been told that the meeting was a disciplinary hearing. The Employment Appeal Tribunal upheld the Tribunal's decision. The statutory provision was clear. The right to be accompanied arises where: a) a worker is required or invited to attend a disciplinary or grievance hearing; and b) the worker reasonably requests to be accompanied at the hearing. Both criteria must be met for the right to arise. W accepted that he did not ask to be accompanied, but argued that he did not ask because his employer had not made him aware of the nature of the meeting, nor did he appreciate during the meeting that he may be dismissed until it happened. Since he did not know what the meeting was about, he could not ask to be accompanied. W argued that it could not have been Parliament's intention that an employer could avoid complying with the right to be accompanied by failing to inform the worker of the nature of the meeting. This would amount to a major loophole in a statutory provision that is designed to redress the imbalance of power in such situations. The Employment Appeal Tribunal found that the Tribunal had been correct to apply the legislation as it was drafted. There was no ambiguity as to when the right arose, so there was no scope for implying an obligation on the employer to act reasonably and inform the worker of the nature of the meeting. However, the Employment Appeal Tribunal noted that it would be reasonable for a worker who had not been made aware of the nature of the meeting to ask to be accompanied during the meeting at the point at which they realised they were in a disciplinary or grievance meeting. It would then be reasonable for the employer to adjourn the meeting to enable the worker to arrange to be accompanied to the rest of the meeting. The Employment Appeal Tribunal went on to note that the Acas Code of Practice on Disciplinary and Grievance, DG Code, states that the employer should give the worker notice of the meeting, the circumstances and possible consequences, and inform the worker of their right to be accompanied. However, a failure to follow the DG Code does not amount to a breach of duty by the employer in itself and is not relevant to the determination of whether the statutory right to be accompanied has been complied with. The Employment Appeal Tribunal did, of course, highlight that breaches of the DG Code should be taken into account when determining a question such as whether a dismissal is fair or unfair. This decision just centred on whether there had been a breach of the right to be accompanied. Employers should, nevertheless, always be careful to ensure that workers are given the right to be accompanied to disciplinary and grievance meetings, as a failure to do so is likely to breach the good practice principles set out in the DG Code which may make any dismissal procedurally unfair, where an employee has sufficient qualifying service to bring a claim under the general unfair dismissal scheme. which in this case W did not as he had only been employed for one month. In addition, a failure to follow the DG code can also increase any award made by up to 25% where a successful claim has been brought. Look out for further episodes in this series to stay up to date on all things HR and employment law related.