The court should look at all the circumstances in deciding whether the required occupation is for the better performance of the employee’s duties
Mr Wragg was employed by the council as a countryside ranger, with duties relating to the management and conservation of areas of common land in Surrey. He lived in a house owned by the council. His contract of employment stated:
It shall be a condition of your service … that you will occupy, on a permanent and fulltime basis, a property to be provided by the county council. This property is provided for the better performance of your duties.
He served notice under Housing Act 1985 s122 claiming to exercise the right to buy. The council served a notice under section 124 denying that he had a right to buy, relying on the exclusion from secure tenancy status in Sch 1 para 2(1) (premises occupied in connection with employment). He brought a claim in the county court under section 181 for the determination of that issue. The claim was decided on the assumption that he was a tenant. After a detailed review of the evidence, including the work carried out by Mr Wragg since 1984, HHJ Reid QC found that Mr Wragg’s contract did not fall within the exception in para 2(1). The council appealed.
The Court of Appeal allowed the appeal. Richards LJ stated that:
[para 2(1)] is to be construed as laying down two distinct conditions: first, that ‘his contract of employment requires him to occupy the dwelling-house’; secondly, that the requirement is ‘for the better performance of his duties’. The first condition looks only to the terms of the contract: the question is simply whether the contract contains such a requirement or not. The second condition, however, raises an issue of fact outside the contract: the question is not whether the contract states that the requirement is for the better performance of his duties, but whether the requirement is in fact for the better performance of his duties … [The second condition] should be construed as including an objective test: ‘for’ is to be read as ‘to enable’, the essential question being whether the required occupation of the property is intended to promote, and is reasonably capable of promoting, the better performance of the employee’s duties.
The court should look at all the circumstances in deciding whether the required occupation is for the better performance of the employee’s duties, including the reasons given for the imposition of the requirement to occupy the property, the considerations taken into account in imposing that requirement, and the factual history in so far as it casts light on whether occupation of the property was or was not reasonably capable of leading to better performance of the employee’s duties. In this context, ‘better’ is a true comparative. The question is whether or not the requirement to occupy the house is for the better performance of the employee’s duties as compared with the position if there was no requirement to occupy.
In this case, the contractual requirement to occupy the house provided by the council was imposed under the council’s policy. There was no reason to doubt the council’s evidence that the policy about tied accommodation was one for which there was a continuing justification. The various considerations taken into account by the council in maintaining and applying its policy were all relevant and valid. There was good reason to consider that the required occupation of a house provided by the council was intended to promote, and was reasonably capable of promoting, the better performance of his duties and thus was for the better performance of his duties. The occupation of the house fell squarely within para 2(1) and Mr Wragg was not entitled to exercise the right to buy.