PDA

View Full Version : Employee and "tied" accommodation .



boredbird
26-08-2009, 07:48 AM
My cousin has a small tea-shop, which has a flat-let above. When she employed a woman to run the shop, 18mths ago, she asked if she could have the flat-let above. It was agreed that her wage would drop slightly and the flat-let would be “part” of her “wage”, it was not part of her job offer.
Unfortunately, she neither gave her a work contract or a tenancy agreement for the property. Unfortunately, my cousin has lost her job, and the woman has not been doing her job properly, so has decided to give her notice on the job and do it herself. Her problem is giving her notice on the flat, or getting the full market rent.
Can she just issue a section 21 notice? Is it separate to the employment, or part of it? She has the feeling that once the notice has been given for the employment, she will not go easily.
Thanks in advance.

Telometer
26-08-2009, 08:25 AM
Two things for next time:

1. Normally, for an employee, you would grant a licence to occupy the flat, rather than a tenancy.

2. The value of accommodation does not count towards the minimum wage.

mind the gap
26-08-2009, 08:43 AM
I agree with Telometer, but for this time:

I think you will have to assume, for the purposes of regaining possession, that there is an oral AST in place (unless there is other legislation relating to 'tied' accommodation which overrides this), and issue a section 21 as normal, giving at least two months' notice to co-incide with the day of the month when the tenancy started.

If she does not move out when asked, I assume you will have to apply for a court order and instruct bailiffs if all else fails.

If I have got this very wrong, I'm sure one of the lawyers will be along soon to correct me.

On a pragmatic note, it might help persuade the tenant to move more willingly if she is offered practical asssistance in finding a new place and transporting her stuff to it if she needs it. Just a thought. It worked for us.

Telometer
26-08-2009, 09:12 AM
On another point, I am not sure that your cousin can "give notice" on the job. There is possibly no case for redundancy, as your cousin is going to do the job instead of the woman.

Cousin really does not want to end up at an employment tribunal. Either for redundancy which is not, or failure to operate suitable disciplinary proceedings etc.

I suggest a compromise agreement with a payoff of 6 months salary - which would be tax free - in exchange for woman leaving job and house, now.

Remember that even if she has meekly accepted being "sacked" she may not accept losing her house so meekly, at which point she will be consulting a solicitor who will pick this point up.

Time to go to see a solicitor.

jeffrey
26-08-2009, 09:51 AM
I think you will have to assume, for the purposes of regaining possession, that there is an oral AST in place (unless there is other legislation relating to 'tied' accommodation which overrides this), and issue a section 21 as normal, giving at least two months' notice to co-incide with the day of the month when the tenancy started.

If she does not move out when asked, I assume you will have to apply for a court order and instruct bailiffs if all else fails.

If I have got this very wrong, I'm sure one of the lawyers will be along soon to correct me.
Alternatively, serve s.8 Notice on discretionary g16 (below):

The dwelling-house was let to the tenant in consequence of his employment by the landlord seeking possession or a previous landlord under the tenancy and the tenant has ceased to be in that employment...

Bel
26-08-2009, 10:07 AM
I agee that the legal side of giving notice on the job must be attended to as a priority.
If she has been in the flat for more than a year, then the rent can be increased to market levels.



Whether it is a employees licence to occupy may depend partly on how suitable the flat is for a person who is not employed...is there separate access?

Legal advice required here on both counts

boredbird
26-08-2009, 17:00 PM
Two things for next time:

1. Normally, for an employee, you would grant a licence to occupy the flat, rather than a tenancy. There was no tenancy (written) granted

2. The value of accommodation does not count towards the minimum wage. She earns more than the minimum wage, without the flat. She was given the flat after she started the job, when it became vacant

Telometer
I suggest a compromise agreement with a payoff of 6 months salary - which would be tax free - in exchange for woman leaving job and house, now.
There is no way she can afford to "pay" off the woman, the shop is not making any profit as she is not doing her job.

Telometer On another point, I am not sure that your cousin can "give notice" on the job. There is possibly no case for redundancy, as your cousin is going to do the job instead of the woman.The woman serves food and drink and clears up. My cousin will be taking over those tasks AND cooking the food, ordering books everything, so would that not be a different job?

Bel - There is a seperate entrance to the flat.

Jeffery - Should she serve a section 21 alongside a section 8 ? I will tell her and she can search for one on the net.
Thanks

jeffrey
26-08-2009, 17:12 PM
JeffREy - Should she serve a section 21 alongside a section 8 ? I will tell her and she can search for one on the net.
As the s.8 Notice is to be based on a discretionary ground (g16), it's unlikely to succeed- so use s.21 too. On the other hand, a s.8 Notice -if successful- will work during the fixed term; s.21 cannot provide a Possession Order operative until end of ifxed term (at earliest).