NHS Education Scotland Wins Appeal After Tribunal's 'Serious Procedural Irregularity'
NHS Education Scotland wins appeal after a tribunal was found to have made factual findings without proper evidence or process, leading to a 'serious procedural irregularity'.
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NHS Education Scotland Appeal Succeeds
NHS Education Scotland (NES) has successfully appealed a decision made by an Employment Tribunal, with the Employment Appeal Tribunal (EAT) finding a 'serious procedural irregularity' in the original hearing. The case, NHS Education Scotland v Dr Hazel Hiram, centred around Dr Hiram's unsuccessful application to be a vocational trainer (VT) for the year 2023/24.
Background of the Case
Dr Hiram, a dentist, had been engaged by NES to provide vocational dental training from 2015 to 2022. Following the rejection of her application for the 2023/24 role, she brought claims against NES. The initial Employment Tribunal upheld claims of victimisation and discrimination under the Employment Rights Act 1996 (NHS Recruitment - Protected Disclosure) Regulations 2018, and detriment for making protected disclosures, awarding Dr Hiram compensation.
Grounds for Appeal
NES appealed the tribunal's findings on two key points:
- The finding that not appointing Dr Hiram as a VT constituted victimisation, discrimination, and a detriment for making protected disclosures.
- The finding that feedback provided to Dr Hiram on 28 April 2023 amounted to victimisation and further detriment.
Central to the appeal was the assertion that the Employment Tribunal had erred in law by concluding that CC, chair of the panel that considered Dr Hiram's application, had provided dishonest testimony.
EAT Ruling: Procedural Error Found
The EAT, presided over by The Honourable Lord Colbeck, found that the original Employment Tribunal had indeed made factual findings without an evidential basis. Specifically, the tribunal did not accept CC's evidence that he was unaware of the full circumstances of a previous dispute involving Dr Hiram, yet this was never properly put to him during the hearing.
The EAT cited NHS Trust Development Authority v Saiger and others [2018] ICR 297, emphasising that it is generally unfair to reach conclusions about a factual scenario if that scenario has not been presented to the relevant witness. The EAT determined that the Employment Tribunal’s failure constituted a serious procedural irregularity and an error of law.
Key Findings of the EAT
The EAT highlighted several instances where the original tribunal's conclusions lacked evidential support. For example, the Employment Tribunal presumed a close working relationship within the dental leadership team and assumed CC was informed of details regarding previous disputes and emails. The EAT found no evidence to support these assumptions and criticised the Employment Tribunal's reliance on hypotheses rather than factual evidence.
Outcome
The Employment Appeal Tribunal upheld the appeal, dismissing the claims that were successful before the original Employment Tribunal.
Read the entire judgement here: NHS Education Scotland v Dr Hazel Hiram [2025] EAT 115
