Going to the pub while off work ill is not necessarily a sackable offence, an employment judge has ruled.
Unless a company had specifically forbidden employees from socialising while off sick, they were free to do as they liked, judge Andrea Pitt said.
She made the ruling at a tribunal in the case of a driver who was fired after being caught going to a social club having called in sick.
Colin Kane, 66, had told his bosses he spent the day in bed "with his chest" while suffering from a serious lung condition. But Mr Kane, who has worked for Tyne and Wear-based company Debmat Surfacing since 2012, was seen by a colleague smoking and drinking outside a venue close to their workplace.
He is in line for compensation after winning a case for unfair dismissal.
The hearing in Newcastle heard Mr Kane had suffered with chronic obstructive pulmonary disease – a condition that causes breathing difficulties and mainly affects smokers – for several years and was often absent from work.
Debmat Surfacing had launched disciplinary action against him for dishonesty and breaching company rules shortly after he was caught on March 9 last year, the tribunal heard. In a disciplinary meeting, he admitted going to the social club for 15 minutes on one occasion and for 30 on a second occasion.
John Turner, a managing director of Debmat Surfacing, said to Mr Kane: "I wouldn’t expect a member of staff who is too ill to be at work [to be] out on the drink. Do you think it’s reasonable?
"I phoned you on Tuesday to see how you were – you didn’t answer. When you called me back later on, I asked how you were. You informed me you’d been in bed all day and had just got up, yet this is one of the days that you were seen in the club – is that correct?"
Although Mr Kane denied being at the club on the day he was called, he was summarily fired last July.
In a letter, Mr Turner said Mr Kane had been found guilty of gross misconduct for "attending the pub on numerous occasions, consuming alcohol and smoking whilst being signed off sick with chronic lung disease/chest infection and claiming to be at home in bed".
However, Judge Pitt found the investigation into Mr Kane to be flawed. Upholding the claim of unfair dismissal, she pointed out that the company’s rules did not prohibit employees from socialising while off sick.
She said: "It was put to him he should not be in a public house because he was absent through ill-health.
"There is nothing in the disciplinary procedure prohibiting an employee from acting in this way. There is no rule they [Debmat] can point to which says that an employee cannot socialise in whatever way they deem appropriate whilst absent from work through illness."
A further hearing will take place to determine the amount of compensation Mr Kane will receive.