NHS Education Scotland v Dr Hazel Hiram

An Employment Tribunal commits an error of law where it makes a crucial factual finding that contradicts unchallenged direct evidence and lacks an evidential basis. Disbelief of a witness’s evidence does not itself establish the opposite factual proposition.

It will usually be procedurally unfair to find that a witness has lied without giving that witness a fair opportunity to address the matter. A tribunal should not resolve a case by hypothesising facts which neither party has advanced and which the evidence does not support.

The respondent dentist had provided vocational dental training for the appellant. Her application to be a vocational trainer for 2023/24 was refused.

The Employment Tribunal upheld claims of victimisation, discrimination under the Employment Rights Act 1996 (NHS Recruitment - Protected Disclosure) Regulations 2018, and detriment for protected disclosures under section 47B of the Employment Rights Act 1996. It relied centrally on findings that CC, who chaired the relevant panel, knew the full nature of an earlier dispute and the contents of the respondent’s March 2023 emails, and had lied in denying that knowledge.

The appellant appealed, contending that those findings lacked an evidential basis and were reached by an unfair procedure. The central issue was whether the evidence entitled the tribunal to make those findings.

1. Appeal allowed. The findings in paragraphs 79 and 80 of the Employment Tribunal’s judgment were crucial to its liability findings, but had no evidential basis. The tribunal therefore committed a serious procedural irregularity amounting to an error of law.

2. The tribunal was not entitled to infer that CC knew the full circumstances of the earlier dispute merely from the alleged closeness of the leadership team, his involvement in an earlier review, his knowledge that a settlement and non-disclosure agreement existed, or his awareness that the later decision was sensitive. The direct evidence was that he did not know the dispute’s nature. Disbelieving that evidence could not establish the contrary proposition without other supporting evidence.

3. Nor was there evidence that CC knew the contents of the respondent’s emails of 13 and 17 March 2023. He said that he first saw the latter in the tribunal bundle, and that evidence was not challenged. The fact that he had sought human-resources guidance did not justify the tribunal’s hypothesis that he had been told the allegations made in those emails.

4. The tribunal’s finding that CC had lied was also procedurally unfair. Although an employment judge should not accuse a witness of lying, the judge should frame questions so that a witness has an opportunity to address the factual basis on which a finding of dishonesty may be made. CC had not been given that opportunity. The approach was contrary to the guidance in NHS Trust Development Authority v Saiger and others [2018] ICR 297.

5. It was unnecessary to determine the third appeal ground. The successful claims before the Employment Tribunal were dismissed.

• Employment Appeal Tribunal: Allowed the appellant’s appeal and dismissed the claims which had succeeded before the Employment Tribunal: [2025] EAT 115.
• Employment Tribunal: In a unanimous judgment sent to the parties on 9 April 2024, upheld claims arising from the refusal to appoint the respondent as a vocational trainer and from subsequent feedback.