Where the claimant was not informed of a right to be accompanied but did not request to be accompanied – there was no claim against the employer’s action as the duty only arose when it was requested.

The claimant was employed by the respondent from December 2022 to January 2023. The claimant alleges that at the end of a shift and without warning the owners had a discussion with him without explaining the purpose or potential. This discussion led to the claimant’s dismissal.
The issue was in relation to the right to be accompanied.  The claimant set out that he was aware of such a right but that because he did not know the nature of the meeting or potential outcome he did not appreciate that such a right applied to that meeting.  The claimant was seeking to amend his claim to add a complaint that the respondent had breached the right to be accompanied but this was refused at first instance.

The amendment failed at first instance as the Tribunal stated the claim was bound to fail due to the fact that the claimant did not request the right to be accompanied.  This was appealed to the EAT.

The EAT found that Section 10 of the Employment Relations Act 1999 sets out that the worker reasonably requests to be accompanied then the employer would be obliged to do so.  In interpreting that, the Tribunal was correct in finding that the claimant did not reasonably request to be accompanied and there was nothing that the employer failed to comply with.  Going further, the EAT found that there was no general requirement within that aspect of the legislation for the employer to act reasonably and so could not be read widely to include such an obligation.

The claimant further argued that what had happened was in breach of the ACAS Code.  The EAT reminded us all that it was only a code and not a statute. It cannot be treated as a statutory provision.  The EAT in terms of disposal dismissed the appeal.  They stated that if there was a gap in the statutory protection that ought to be filled then it would be a matter for Parliament rather than the Tribunal. 

A case relating to the right to be accompanied which is central to how many of the procedures within employment law function.  In this setting though, which was well before the right not to be unfairly dismissed had crystallised, the legislation in England and Wales put the onus on the employee to reasonably request the right to be accompanied and it is only then that the duty is on the employer to ensure that it is facilitated.

You can read the case in full here.