Well we have our first Talking Shop question in so many thanks to Di for this. Here is her question:
I have a client who is residing in accommodation for persons taking up employement. Basically a caretaker at a school. Tenancy agreement started 30/6/95 and states
“The tenancy will not be a secure tenancy as (a) The council are letting the premises to you for the better performace of your duteis and upon ceasing to be in that employemnt this tenancy shall also determine forthwith provided that either party may at any time terminate the tenancy by giving one month’s notice in writing in that behalf expiring at any time.
(b) The council have herby notified you in writing of the circumstances in which this exception applies and that in its opinion the proposed tenancy will fall with the exception to security of tenure in Schedule 1 paragraph 2 of the Housing Act 1985.”
The school now want to use the accommodation for other purposes and not for the caretaker to continue to reside in. He has not lost his job and will continue to be a caretaker.
They are stating that he is no longer the sole key holder for his position and several other people can now do his job if necessary and so he no longer needs his accommodation (for better performance of his duties) as stated in his tenancy agreement.
Legally can they ask him to leave his accommodation?
This is really an employment issue rather than a housing one, so we have spoken to the other Easy Law Training Director, Graeme Gee, who is an employment specialist. This is what he said:
The contract of employment is tied directly to the occupation of the property and the employer is therefore obliged under the terms of this contract to provide the accommodation. This obligation will last as long as the employment of the person as a caretaker at the school will last.
The employment contract can only be varied by agreement with the employee as per the Employment Rights Act 1996 part 1. Any attempt to deprive the employee of this right under the contract of employment could be seen as a breach of his contract by the employer. Variations to contractual conditions can only be done by mutual agreement and negotiation.
The reasons given in the question for the ending of the occupation agreement are ‘the cessation of need for better performance of duties’. Better performance of duties has not been made clear in either the job description or the main contract of employment (from the information provided to us). Therefore the only thing that can be looked at directly in a legal sense is the relationship of the occupation of the property to the contract of employment.
As part of the information provided the phrase ‘upon ceasing to be in that employment, this tenancy shall also cease forthwith’ is used.
This seems to indicate that it is the intention of both parties that while the employee remains employed as a caretaker at the school he will have full use and occupation of the property concerned.
Graeme (who worked as an Employment Tribunal advocate for some 15 years, acting for applicants) also commented that if the caretaker came to him for advice he would recommend bringing a claim to the Employment Tribunal to make a determination on the specific terms and conditions of the contract.
If the caretaker were excluded from the property this would be seen as a breach of contract and there would be a claim for compensation for the loss of benefit.
Turning to the possession side of the question, it looks as if the caretaker will have a license rather than a tenancy. However we suspect that if the School attempt to evict the caretaker form the property, for example after serving a notice to quit, he would be able to defend any proceedings on the basis of his contract of employment
Ben asked me to add a note about Schedule 1 of the Housing Act 1985. This exempts certain properties from being secure (council) tenancies and one of those exemption is tenancies granted to employees of the council where there is a clause stating that it is essential to live in the property for better performance of duties.
In fact (he went to on say) even if it isnt written into the contract itself it will still be implied, if it is clear from the employment arrangement that it really is essential for them to live there in order to carry out his duties, such as resident caretakers etc.
However our view is that the school would be most unwise to attempt to evict the caretaker and should try to negoatiate some sort of agreement with him.
What do you think?