NHS Education Scotland v Dr Hazel Hiram

The Employment Appeal Tribunal allowed the employer's appeal. The EAT held that the Employment Tribunal made critical findings of fact without any evidential basis and reached conclusions of dishonesty without giving the witness an opportunity to answer the allegations. The ET's reasoning relied on hypotheses about what "must have happened" rather than on admissible evidence, including six discrete inferences about the chair's knowledge of a prior dispute. Those defects amounted to serious procedural irregularities and errors of law when applied to the respondent's claims under the Employment Rights Act 1996 (including s.47B) and the Employment Rights Act 1996 (NHS Recruitment - Protected Disclosure) Regulations 2018.

Background and parties:

• The respondent, a dentist, had provided vocational training to dental graduates for the appellant from 2015 to 2022. Her application to be a vocational trainer for 2023/24 was refused on 13 April 2023.
• Following that refusal the respondent brought claims alleging victimisation and discrimination under the Employment Rights Act 1996 and the 2018 Regulations and sought compensation for loss and injury to feelings.

Procedural history:

• An Employment Tribunal (Edinburgh), after a hearing in March 2024, found that the appellant's refusal to appoint the respondent amounted to victimisation and discrimination under the 2018 Regulations and that feedback on 28 April 2023 amounted to further victimisation and detriment. Judgment was sent to parties on 9 April 2024.
• The appellant appealed to the Employment Appeal Tribunal, advancing three grounds: (1) the ET made findings of fact contrary to the evidence and without adequate evidential basis; (2) the ET found the chair (CC) dishonest without having put dishonesty to him, contrary to the principle in NHS Trust Development Authority v Saiger and others; and (3) the ET decided issues that were not raised by either party.

Issues framed by the EAT:

• Whether the ET was entitled to disbelieve CC's evidence that he did not know the nature of an earlier dispute, and whether there was an evidential basis for the ET's six articulated reasons for concluding he did know the full circumstances.
• Whether it was procedurally unfair to reach conclusions of dishonesty without giving CC an opportunity to answer that suggestion.
• Whether the ET decided matters not put to the parties, contrary to principle.

Court reasoning and decision:

• The EAT examined the transcript and the six reasons the ET gave for concluding CC knew the full circumstances. For each reason the EAT found no adequate evidential basis in the contemporaneous evidence or testimony: other leadership witnesses did not give evidence; CC had explicitly denied knowledge; questions put in cross-examination did not challenge CC on the central matters; and some inferences were premised on an assumed closeness of the leadership team which was not established in evidence.
• The EAT concluded the ET relied on hypotheses and speculation rather than admissible evidence and failed to give CC a fair opportunity to address an adverse finding of dishonesty. The ET also decided issues that had not been advanced by the parties. These errors amounted to serious procedural irregularities and errors of law.
• As a consequence the EAT allowed the appeal and dismissed the respondent's claims that had succeeded before the ET.

Appeal allowed. The Employment Appeal Tribunal held that the Employment Tribunal erred in law by making key findings of fact for which there was no evidential basis and by reaching conclusions of dishonesty without giving the witness an opportunity to address those allegations. Those failures amounted to serious procedural irregularities and unfairness that vitiated the ET's conclusions, and accordingly the ET's favourable findings for the respondent were set aside.

Employment Tribunal (Edinburgh) judgment sent 9 April 2024 (finding victimisation and discrimination under the Employment Rights Act 1996 and the Employment Rights Act 1996 (NHS Recruitment - Protected Disclosure) Regulations 2018). Appeal to the Employment Appeal Tribunal heard 1 May 2025; judgment dated 7 August 2025, Neutral Citation [2025] EAT 115.