Tenancies of residential premises are capable of attracting security of tenure, meaning that the landlord will be entitled to possession only in limited circumstances. This can create problems in scenarios such as where an Academy allows a caretaker to occupy a property located on school premises.
However, where an employee is granted the right to occupy a property in order to permit the employee to perform better his/her duties as an employee, or because it is essential that the employee occupies the relevant premises for those purposes, a service occupancy is likely to arise.
A genuine service occupancy will not attract security of tenure, and the employee's right to occupy the property will be co-terminous with his/her employment.
To be certain of granting a service occupancy, the employer must ensure that the contract of employment contains an obligation on the part of the employee to reside at the relevant property "so as to perform better his/her duties under the contract of employment". This contractual requirement may also be found in a written occupation agreement. Please note, however, that this wording will not be sufficient on its own to create a service occupancy. There must be a genuine need for the employee to reside at the property to better perform his/her duties.
In the event that the contract of employment and/or occupation agreement does not include the wording above, the employer must show that such a provision should be implied into the employment contract. Such a term will only be implied in limited circumstances and where it is essential for the individual to occupy the property to perform his/her duties. It is prudent therefore to make sure that the employment contract and/or occupancy agreement contains the requisite wording, whether the Academy is creating a new service occupancy, or inheriting a service occupancy when it converts into an Academy.