1 Qualifying for Protection
11.03 The Rent (Agriculture) Act 1976 employs complex terminology to define occupancies to which protection extends. The occupier must have been granted a ‘relevant license or tenancy’ of property in ‘qualifying ownership’, and the occupier must usually be a ‘qualifying worker’.
If these conditions are met the employee becomes a ‘protected occupier in his own right’. On termination of his contractual tenancy or license he will be a ‘statutory tenant in his own right.’ The code of protection for ‘protected’ agricultural occupiers, contained in the Rent (Agriculture) Act 1976, continues to apply where the tenancy or license was granted prior to commencement of the Housing Act 1988 on 15 January 1989.Protected occupiers in their own right
11.04 By virtue of s 2(1) of the 1976 Act, an employee will be a ‘protected occupier in his own right’ if three conditions are satisfied:
(i)he has a ‘relevant license or tenancy’;
(ii)the dwelling is in ‘qualifying ownership’, or has been at any time during the subsistence of the tenancy or license;4 and
(iii)the occupier is a ‘qualifying worker’, or he has been a qualifying worker at any time during the subsistence of the license or tenancy.5 Once the occupier has become a ‘qualifying worker’ his protected status will be unaffected if he later ceases to be employed in agriculture, or to be employed by his landlord. Once satisfied, the qualifying worker condition cannot be disapplied.6
11.05 An occupier will qualify for protection if he satisfies (i) and (ii) but has been incapable of whole time work in agriculture as a consequence of a qualifying injury or disease.7 Similarly, he will remain a protected occupier in his own right where there has been (i) a surrender and regrant of the premises in circumstances where he was, prior to regrant, a protected occupier; and (ii) where the license or tenancy was granted in consideration of his giving up possession of another dwelling house of which he was a protected occupier.8
Relevant tenancy or license
11.06 The 1976 Act applies whenever a qualifying worker (see below) has exclusive occupation of a dwelling house as a separate dwelling.
Occupation can be under either a license or tenancy, though if the employee has a license, it is a prerequisite of protection that he has exclusive occupation of the property as a dwelling.9 If the occupier has a tenancy, the qualifying conditions of the Rent Act 1977 are modified. A ‘relevant tenancy’ is one under which a dwelling house is ‘let as a separate dwelling’.10 It will qualify for protection under the 1976 Act, however, even if the rent paid by the occupier is less than the threshold for full Rent Act protection,11 and if the dwelling is comprised in an agricultural holding.12 A tenancy will be outside the 1976 Act if it is a bona fide term that the landlord provides the tenant with board or attendance, but meals provided by the landlord in the course of the occupier’s employment do not constitute ‘board’ for this purpose.1311.07 Apart from these modifications the qualifying conditions for full protection under the Rent Act 1977 must be satisfied, and apply whether the occupier’s interest is a license or tenancy. A ‘protected’ occupancy cannot arise, for instance, if the landlord’s interest belongs to the Crown or a local authority, or the landlord is a resident landlord within the meaning of the 1977 Act.14
Qualifying ownership
11.08 A dwelling is in ‘qualifying ownership’ for the purposes of the 1976 Act at any time if, at that time, the occupier is employed in agriculture and the occupier’s employer is either the owner of the dwelling house or has made arrangements with the owner for it to be used as housing accommodation for persons employed by him in agriculture.15
Qualifying worker
11.09 For protection to accrue, the occupier must have been a ‘qualifying worker’ at some time during the subsistence of the tenancy or license – not necessarily, note, at the date on which protection is claimed.16 By virtue of Sch 3, para 1 a person is a qualifying worker if, at any time, he has worked whole time in agriculture, or has worked in agriculture as a permit worker, for not less than 91 out of the last 104 weeks.
For the purpose of calculating the number of weeks worked in agriculture, a week will ‘count’ if the number of hours for which he works for his employer is not less than 35 hours.17 Certain weeks will count towards the occupier’s entitlement even if he does not work during them. These are:(i)any week during which, by agreement with his employer, he works less than the standard number of hours (ie 35 hours);18
(ii)any week during which he is absent from work in agriculture by reason of taking a holiday to which he is entitled;
(iii)any week in which he is absent from work in agriculture with the consent of his employer;
(iv)any week during which he is absent in consequence of an injury or disease (whether a ‘qualifying’ injury or disease or not).19
11.10 Where an occupier is suffering from a ‘qualifying’ injury or disease, any week of absence will count as a week of whole time work in agriculture, whether or not that person is employed in agriculture as a whole time worker.20
11.11 It should be noted that the qualifying employment need not be with the same employer – if an agricultural worker at any time works for 91 out of the previous 104 weeks full time in agriculture, he achieves the status of ‘qualifying worker’. If he is offered accommodation thereafter on terms that constitute a ‘relevant license or tenancy’, and the premises are in ‘qualifying ownership’, the protection of the 1976 Act will apply ab initio. It is therefore important for an employer offering accommodation to agricultural employees to ascertain the precise nature of their previous employment status at the outset. It is also important to note that, once a protected agricultural occupancy has arisen, it will continue to be protected notwithstanding the occupier later ceases to be employed full time in agriculture – indeed, he may cease to be employed at all. Once the agricultural worker condition has been satisfied it gives the occupier an ongoing status that confers protection.
Likewise, as soon as the occupier becomes a ‘protected agricultural occupier’ this status attaches to the property irrespective of his future employment record, provided he continues to occupy the dwelling as his residence. Although, in most cases to which the 1976 Act applies in practice, the occupier will have completed 91 weeks’ work with the same employer, by whom the accommodation has also been provided, the scope of the Act is potentially very much wider.11.12 Special provision is made for two categories of employee.
Permit workers
11.13 An employee is entitled to count towards his entitlement any week during which he has worked in agriculture as a ‘permit worker’.21 Where an employee is suffering from a physical or mental incapacity which prevents him earning the minimum rate of pay prescribed by an Agricultural Wages Order, the Agricultural Wages Board may grant him a permit, exempting his employment from the statutory restrictions otherwise applicable under the terms of the Agricultural Wages Act 1948.22 Any week worked as a permit worker can be counted irrespective of whether 35 hours are worked or not. In this way, therefore, the Act ensures its benefits are extended to incapacitated employees who are unable to comply with the more stringent qualifying conditions applicable to others. As with other employees, weeks during which absence is due to holiday leave, agreed absence or injury, may be counted towards the 91-week qualifying period.
Employees suffering ‘qualifying disease or injury’
11.14 An employee can count towards his entitlement any week in which he is incapable of work by reason of any qualifying injury or disease23 viz an injury caused by an accident arising out of and in the course of his agricultural employment, or an injury prescribed in relation to agricultural workers under the Social Security legislation.24 Furthermore, where an occupier suffers a qualifying injury or disease during the course of his employment, rendering him incapable of whole time work in agriculture, he will be a protected occupier irrespective of whether he has 91 weeks’ work in agriculture or not.25 Workers suffering injuries in the course of their employment therefore enjoy the residential security conferred by the 1976 Act irrespective of the length of their employment.
The 1976 Act will apply if an injury is sustained during the early part of an occupier’s agricultural career. Moreover, while he is unable to work, as a consequence, weeks will count towards his statutory entitlement so that after 91 weeks he will achieve the status of ‘protected occupier’. This will ensure continual protection under the 1976 Act if, on his return to health, he subsequently ceases to be employed in agriculture or is employed by a different employer who offers him tied accommodation. Anomalously, however, if one returns to health during the initial 91-week qualifying period, statutory protection will cease to apply until the qualifying period has elapsed. The concession of automatic protection applies only ‘if and so long as’ the occupier is incapable of whole time work in agriculture, or work as a permit worker, in consequence of a qualifying injury or disease.26Employment in ‘agriculture’
11.15 An occupier must be employed in agriculture pursuant to a contract of employment, viz a contract of employment, or apprenticeship, whether express or implied, written or oral.27 The protection of the 1976 Act does not extend, therefore, to self-employed agricultural contractors. Although self employment is sometimes encountered in practice, it has never provided a ready means to avoid the security of tenure provisions of the Housing Act 1988 or Rent (Agriculture) Act 1976.28 The occupier must also be employed, for the requisite period of time (above), in ‘agriculture’ as statutorily defined.
11.16 ‘Agriculture’ is defined by the 1976 Act in terms which differ in material respects from the definition contained in the Agricultural Holdings Act 1986,29 and which are somewhat wider.
11.17 By virtue of s 1 of the 1976 Act ‘agriculture’ includes dairy-farming and livestock keeping and breeding, the production of any consumable produce grown for sale or consumption (or use in another trade or business), the use of land as grazing, meadow or pasture land, as orchards or osier land, the use of land for market gardens or nurseries,30 and also forestry.
This definition, it should be noted, is inclusive but not exhaustive. Decisions on the analogous provisions of the Agricultural Holdings Act 1986, the General Rate Act 1967, the Rating Act 1971 and the Town and Country Planning Acts are thus of assistance, if not strictly authority.31 The definition was apparently not intended to encompass every rural activity, but was intended to include all operations involved in farming land for commercial purposes.32 Arable farming is therefore included, though not specified, but not (apparently) growing crops and weeds for testing commercial weed killers.33 Grazing is per se an agricultural activity, even though the animals concerned may not be ‘livestock’ within the statutory definition of the latter, eg racehorses.3411.18 ‘Livestock’ includes, by virtue of s 1(2) ibid, any animal which is kept for the production of food, wool, skins or fur, or for the purposes of its use in the carrying on of any agricultural activity. For the purpose of this definition ‘animal’ includes birds, but not fish, thus seemingly excluding fish farming from the scope of ‘agriculture’ in this context.35 By contrast, mink farming would clearly be within the statutory definition. Pheasants and other game reared primarily for sport are not livestock, and gamekeepers employed for this purpose are not protected by either the 1976 or 1988 Acts.36 ‘Animals reared for sport or entertainment or for their decorative qualities cannot... be regarded as being reared in the course of the activity of farming’.37 Racehorses are thus not livestock within the definition.38
11.19 Note that an employee employed in general farm work, such as a farm mechanic, will be employed in ‘agricultural’ work even though his contractual duties may not, taken alone, be agricultural by definition. The definition in the 1976 Act is directed towards including all operations, including repair and maintenance of farm machinery, which are involved in farming land for commercial purposes.39 Cf a shop assistant working in a farm shop, whose duties are not in themselves ‘agricultural’, will not, it seems, be employed in agriculture’ for the purposes of s 1 of the 1976 Act.40 Protection will not automatically be lost if the occupier ceases to be employed in agriculture and commences a non-agricultural user of the premises, eg by using the dwelling to run a jobbing builder’s premises.41 Such user may, however, constitute a breach of the terms of the statutory tenancy.
Statutory tenants in their own right
11.20 Where an occupier satisfies the agricultural worker condition and becomes a ‘protected occupier in his own right’ then, on termination of the protected occupancy, he becomes a ‘statutory tenant in his own right’.42 The statutory tenancy subsists only if and so long as the occupier occupies the dwelling house as his residence.43 It confers merely a personal right of occupation, not a tenancy vesting in possession, and will therefore terminate on the tenant’s later death without successors, or on his vacating the dwelling without sufficient animus revertendi, ie without a settled intention to return, together with a ‘visible state of affairs’, such as the maintenance of furniture, in which that intention finds expression.44 In this respect the 1976 Act differs from the code for ‘assured’ agricultural occupancies under the Housing Act 1988, which latter confers a tenancy vesting in possession on those employees occupying tied accommodation to which it applies.45 The statutory tenancy arises automatically when the protected occupancy is terminated, whether by notice to quit, by a notice of rent increase,46 ‘or otherwise’,47 eg by the tenant accepting a registered ‘fair’ rent fixed by the Rent Officer.48 A single succession to the statutory tenancy is provided for by the 1976 Act.49 Where the occupier’s license to occupy the dwelling house is, on the facts, an integral term of his contract of employment, it will come to an end when his employment ceases. At that point in time it will become a statutory tenancy under the 1976 Act, no formal or informal notice seeking possession being necessary. No separate license to occupy can be inferred from the lack of notice from the landlord seeking possession on cesser of employment.50