The tribunal ruled that Nadine Fallone was dismissed as she made a protected disclosure. It awarded her £33,000 in remedies, even though she had not worked at Peckham Levels for more than two years.
“Employers need to acknowledge that employees who make protected disclosures are granted legal protections,” Mary Walker, a partner of law firm Gordons, told HR magazine.
“Dismissing whistleblowers is deemed automatically unfair if the disclosure is the reason, with potentially unlimited compensation being awarded.
“Disclosures must cover specific areas such as criminal activity or other legal breaches such as miscarriages of justice, health and safety failures and environmental damage.
“The use of drugs and alcohol at work can never be acceptable and puts the employer at risk of breaching its own duty of care – not least in a safety critical environment or when dealing with the public.”
Read more: Employee unfairly dismissed for reporting sheesha den, tribunal finds
Fallone started working at the bar Peckham Levels in August 2022. Upon her employment, she was not provided with an employment contract, although she worked 40 hours per week.
Part of her duties were monitoring health and safety, and she was compliant with a licensing requirement to be on-site during operational hours.
In December 2022, Peckham Levels hosted an event to watch the England-France World Cup quarter final. During the event, bar staff told Fallone that some of the bar staff had taken drinks from the bar.
Fallone later found the colleagues drunk and behaving “in a manner she considered to be inappropriate and potentially dangerous”.
At another event on New Year’s Eve, Fallone saw a colleague removing ‘no smoking signs’ from the terrace, which was a violation of the bar’s licensing and what Fallone considered a health and safety risk. Fallone also saw bar staff smoking on the terrace and acting drunk.
She raised her concerns with her line manager but the issue was not resolved. Fallone later emailed an external HR consultant from Bespoke HR, a consultancy employed by the bar, and Prestone Benson, the owner of the bar, stating her concerns.
A few days later, one of the bar staff told Fallone that her colleague had offered her cocaine at a work party. Fallone told the employee’s line manager, but she Fallone also told Benson that she did not think that manager would do anything about it, as the manager had also done cocaine after the New Year’s Eve party.
Fallone took sick leave on 17 January 2023.
Benson hired Bespoke HR to conduct an investigation in line with her concerns, which was repeatedly delayed. The tribunal heard that both Benson and the Bespoke HR staff told the bar staff that Fallone was the cause of the investigation.
When the consultants finally conducted an investigation, they were told that employees “had heard rumours about drugs being offered by staff in the workplace and that there were ‘blurred lines’ after work regarding both drinking and drug taking by staff”.
Fallone told the tribunal that, following the investigation, she noticed that staff changed their attitude towards her. She felt as though they were “ignoring her”, which bar staff later confirmed to the tribunal that they were.
Fallone was then removed from the company rota. She told the tribunal that the events made her mentally unwell, and was signed off work sick by her GP for another nine days.
Benson later told Bespoke HR to terminate her employment. The tribunal noted that “there were no notes disclosed by the external HR consultants” during the dismissal process.
Upon her return to work, Fallone was dismissed with immediate effect, and was told this was due to “business reasons”. The tribunal ruled this was “so vague as to be meaningless”.
Fallone requested an appeal to her dismissal, but this was refused. The tribunal heard that her mental health deteriorated in the weeks following her dismissal.
It also heard that her confidence was “substantially knocked” by her experiences, and she did not feel confident applying to other roles.
The tribunal ruled that Fallone was dismissed due to the whistleblowing disclosure she made to Benson. Fallone was asked to prove to the tribunal that she had made a protected disclosure that she reasonably believed to be true and in the public interest; judge Clarke agreed.
“The use or potential use of drugs on the premises and a drug acceptance culture might lead to unacceptable sexual or violent behaviour,” judge Clarke said. “There was also a risk to the health and safety of the individual staff members concerned.”
The tribunal ruled that Fallone was also subjected to detriment as a result of the disclosures she made, and that her dismissal was as a result of her whistleblowing disclosure. Benson was “clearly unhappy that [Fallone] had triggered an investigation which required him to involve Bespoke HR consultancy”, the tribunal report noted.
Benson told the tribunal that Fallone was an “unreliable member of the team who spread hurtful and false rumours about other staff”. The tribunal, however, found that none of the witnesses from Peckham Levels were reliable, and described Benson’s evidence as “confused, vague and inconsistent”.
Alleged unreliability was not a sufficient reason for Benson to dismiss her, judge Clarke ruled. Peckham Levels was ordered to pay Fallone £33,259 in remedies.
Read more: Worker who accidentally called customer a “twat” wins tribunal
Reports of alcohol use at work should be taken seriously by HR, Charlie Barnes, director and head of employment at accountancy firm RSM, told HR magazine.
“Where employees raise concerns in good faith with their employer about drug and alcohol use at work, these concerns should always be looked into by employers,” he said.
“Failure to do so exposes the employer to a real risk of harm to their employees or third parties, and damage to their brand and reputation, particularly in industries where employees interact with clients and customers, or are involved in the operation of heavy machinery or vehicles.
“Ignoring the concerns may also undermine the relationship of trust with the employee, potentially leaving them disengaged and ostracised.”
"The identity of the whistleblower should be kept confidential to the extent possible, to help protect them from any potential retaliation," added Rachel Phillips, employment associate at law firm Mills and Reeve, speaking to HR magazine.
"Additionally, support should be offered to whistleblowers to help mitigate any negative impact on them or their mental health, such as counselling or adjustments to make them feel more comfortable in their work environment."
Employers should ensure that they do not subject employees who had made a whistleblowing disclosure to detriment, according to Charlie Rae, employment partner at law firm TLT.
Speaking to HR magazine, he said: “Employers need to be careful to follow any established internal processes for dealing with complaints or concerns that are raised, and many employers have a whistleblowing policy.
“Sometimes it may not be obvious that the matter raised might qualify for protection, so employers need to keep that possibility in mind. Crucially, employers need to ensure they aren’t taking any steps that could be interpreted as treating employees less favourably because they have raised concerns.
“In this case, steps such as taking the employee off the rota, or being ignored by colleagues, were found to be detriments linked to the protected disclosures.”
