Service occupiers

A person is a service occupier if they occupy accommodation as a condition of their employment, they must leave the premises when the employment ends.

This content applies to England

Who is a service occupier

A service occupancy is a particular kind of licence that exists where an employee occupies accommodation where either:

  • it is an express term of the employment contract that the employee lives at the property for the better performance of the employee's duties

  • the occupation of the property is essential for the performance of the employee's duties[1]

In the first case, living at the property can only be a genuine requirement of the employment if the required occupation enables the employee to better perform theirs duties.[2] An arbitrary term in a contract is not sufficient.[3] For the condition to be met, it is not necessary that the employee lives in the property because it is essential to their duties.[4] It is sufficient if the duties would be better performed by someone living on-site than anywhere else.[5] This condition would be met, for example, in the case of a police officer who is expressly obliged to occupy their accommodation so as to ensure that they are available where and when they are wanted.

The second case imposes a stricter test. It is only satisfied if the job cannot be performed unless the employee lives in the accommodation provided. It does not require a specific term in the contract of employment, as a term can be implied into the contract by the actual requirements of the job.[6]

For either test, the occupier can still be a service occupier if their occupation and employment do not start on the same day. This is the case if the employment is the cause or reason for the occupation of the employer's property.[7] In addition, for either test, an occupier can move in and out of a service occupancy as their employment circumstances change. An occupier's status is not fixed in perpetuity.[8]

An occupier who has a service occupancy is called a service occupier. 

Security of tenure of service occupiers

A service occupancy lasts as long as the employee is required to stay in occupation, and when the employment is terminated, the employee must leave the premises.

The employer is not required by section 5 of the Protection From Eviction Act 1977 to serve a notice.[9] However, section 3 of that Act does apply – if the employee fails to leave, the employer can only evict with the benefit of a court order, unless the service occupier is also an excluded occupier.

Where there is a written agreement relating to the property, this may contain terms about leaving the premises and/or a requirement for a notice to quit. In any event, whether an employee can be required to move out during the period of their employment, and whether there is any right to remain after the contract is terminated, mainly depends on the employment contract and on employment law.

In a case concerning the eviction of a school caretaker following the termination of his contract of employment, the High Court held that his exclusion from security of tenure as a service occupier of a local authority did not constitute unlawful discrimination under article 14 of the European Convention on Human Rights.[10]

Service tenancy

An employee is a service tenant if they do not have a service occupancy (where the occupation is neither required by the employer for the better performance of the employee's duties nor essential) and the occupation satisfies the normal requirements of a tenancy.

See Service tenancies in the private sector and Service tenancies in the public sector for more information.

If the occupation does not satisfy the normal requirements of a tenancy, then the occupier has an ordinary licence.[11]

Last updated: 17 March 2021

Footnotes

  • [1]

    Northern Ireland Commissioner of Valuation v Fermanagh Protestant Board of Education [1969] 1 WLR 1708, HL.

  • [2]

    Wragg v Surrey CC [2008] EWCA Civ 19.

  • [3]

    Gray v Holmes [1949] 30 TC 467.

  • [4]

    Coleman v Ipswich BC [2001] EWCA Civ. 852, CA.

  • [5]

    Surrey CC v Lamond (1998) 31 HLR 1051, CA.

  • [6]

    Smith v Seghill Overseers [1875] LR 10 QB 422; Glasgow Corporation v Johnstone [1965] 2 WLR 657, HL.

  • [7]

    Norris v Checksfield (1991) 23 HLR 425, CA.

  • [8]

    Elvidge v Coventry CC (1993) 26 HLR 281, CA.

  • [9]

    Norris v Checksfield (1991) 23 HLR 425, CA.

  • [10]

    Hertfordshire CC v Davies [2017] EWHC 1488 (QB).

  • [11]

    Torbett v Faulkner [1952] 2 TLR 659 CA.