EWHC 1488 (QB), 21 June 2017
The High Court has held that the exclusion from security of tenure for service occupiers is not unlawful discrimination contrary to Art.14, European Convention on Human Rights.
The claimants were a local authority who owned a bungalow used by a school in their area. The defendant was the school caretaker. In January 2003, he moved into the bungalow with his wife and their three children.
His contract of employment provided that he was required to reside in the property; that was repeated in the agreement under which he resided in the property (“the agreement”). In September 2014, his job description was revised so that thereafter he “may” have been required to reside in the property. The agreement was not altered.
On January 20, 2015, the defendant was signed off sick due to, inter alia, anxiety. In April 2015, with retrospective permission, the defendant had a walk-in shower installed in the property because his chronic back pain made it difficult for him to get into a bath. In a report dated March 28, 2017, after the current proceedings were commenced, a consultant orthopaedic surgeon considered that the defendant was under a disability by reason of his back pain.
On June 12, 2015, the defendant was dismissed from his job for gross misconduct. On June 16, 2015, the authority served notice to quit, expiring on July 10, 2015. On September 10, 2015, the authority issued possession proceedings.
The defendant contended as follows.
(i) He was not a service occupier so that the notice to quit was of no effect.
(ii) In any event, the notice to quit was invalid because it gave insufficient notice.
(iii) The decisions to serve the notice to quit and to pursue possession proceedings amounted to indirect discrimination (s.19, Equality Act 2010).
(iv) A possession order would be a breach of the public sector equality duty under s.149, Equality Act 2010, and s.11, Children Act 2004 (the need to safeguard and promote the welfare of children).
The defendant also counterclaimed for a declaration of incompatibility in relation to the security of tenure exemption for service occupiers.
Laing J held that the defendant was a service occupier of the property at the inception of the agreement: . The change in his job description did not result in him ceasing to be a service occupier because the terms of his employment were not amended: . Accordingly, the defendant had no security of tenure and there was no need to serve a notice to quit complying with s.5, Protection from Eviction Act 1977, because the agreement terminated automatically upon the defendant’s dismissal: .
It was further held that neither of the duties under s.149, Equality Act 2010, and s.11, Children Act 2004, provided a defence to a claim for possession: . She said, if she was wrong on that point, that she would have found that s.11 was breached by service of the notice to quit but that, because there was no evidence of the defendant’s disability at the time of service of the notice to quit, there was no breach of s.149: [106-107]. As there was no evidence of disability at the time of service of the notice to quit, there had been no indirect discrimination under s.19, Equality Act 2010, but, in any event, seeking possession was a proportionate means of achieving a legitimate aim: , .
On the counterclaim, she held that the exemption from security of tenure is not incompatible with art.14, European Convention on Human Rights, and that, in any event, the difference in treatment was objectively justifiable: , .