Employment tribunal amendment scope determined by counsel's note rather than original email

The Employment Appeal Tribunal has upheld an employment judge's decision to restrict claim amendments to those formally presented by counsel, rejecting arguments that broader allegations in an earlier email should be included. In Vessey v Richmond Photography Limited [2025] EAT 135, Deputy Judge Michael Ford KC dismissed the appellant's challenge to Employment Judge Smith's amendment decision.

Background and procedural history

Charles Vessey was employed by Richmond Photography Limited as a Customer Services Assistant from March 2017 to October 2020. Following his dismissal, he brought claims for unfair dismissal and disability discrimination, initially alleging that disability discrimination was "an influential factor" in his redundancy selection.

After a case management hearing in December 2022, Vessey was ordered to clarify his discrimination claims. In January 2023, he submitted an email identifying four categories of disability discrimination: harassment during employment, "indirection discrimination" during employment (referencing section 13 EqA), discrimination arising from disability at redundancy, and indirect discrimination at redundancy combined with reasonable adjustments claims.

The email detailed various allegations, including exclusion from a WhatsApp group, treatment documented in the "Criteria Matrix" used for redundancy selection, and failure to provide workplace support.

Counsel's reformulation

Prior to the amendment hearing, Vessey instructed counsel who prepared a formal note dated 24 March 2023. This note significantly reformulated the claims, stating it provided a "summary" of the January email but making substantial changes:

• The harassment claim was explicitly withdrawn due to "evidential difficulties"
• Direct discrimination was reframed as a claim that dismissal itself was discriminatory, abandoning allegations about WhatsApp exclusion during employment
• The reasonable adjustments claim disappeared entirely from the formal note
• Indirect discrimination was limited to the Criteria Matrix application at dismissal

The tribunal's decision

Employment Judge Smith granted the amendment application based specifically on paragraph 13 of counsel's note, allowing three claims: direct discrimination regarding dismissal, discrimination arising from disability, and indirect discrimination. His written reasons directly quoted the note's formulation of these claims.

When Vessey later argued before Employment Judge Abbott that the amendment should encompass all allegations in his January email, this was rejected. EJ Abbott confirmed that EJ Smith's decision was limited to the matters articulated in counsel's note.

The appeal and EAT analysis

Vessey appealed, contending that counsel's note was merely a "summary" and that he should be permitted to pursue all claims detailed in his January email, including direct discrimination regarding the WhatsApp exclusion and reasonable adjustments claims.

Deputy Judge Ford KC systematically rejected this argument. The EAT found that contextual analysis of counsel's note demonstrated it was not merely summarising existing claims but reformulating them entirely. Key factors included:

The note's failure to reference reasonable adjustments claims, despite their prominence in the original email, indicated withdrawal rather than oversight. The substantial differences in legal categorisation and factual content between the email and note showed the latter represented the claims actually being pursued.

The note's submissions on the Selkent criteria emphasised that new complaints related only to dismissal, reinforcing that employment-period discrimination was not being pursued.

Legal implications

The judgement clarifies that tribunals are entitled to treat formal legal submissions as definitive statements of a party's case, even where earlier communications might suggest broader claims. The phrase "in summary" in legal documents cannot bear unlimited interpretative weight when the substantive content demonstrates fundamental reformulation.

The decision reinforces the importance of precision in amendment applications and highlights how legal representation can effectively narrow and focus discrimination claims, sometimes at the expense of broader allegations a litigant in person might wish to pursue.

The EAT's analysis provides guidance on interpreting amendment applications where there are discrepancies between informal communications and formal legal submissions, establishing that tribunals should focus on the latter as representing the applicant's considered position.