McPhail and another v Greensmith

Landlord and tenant — Rent (Agriculture) Act 1976 — Whether person employed on agricultural holding as a mechanic was a ‘qualifying worker’ In March 1982 the plaintiffs let the defendant into occupation of a cottage as a term of a contract of employment. It was a condition of the contract that the defendant should so occupy for the better performance of his duties. He was employed primarily as a mechanic to maintain vehicles and machines on a 600-acre holding. The plaintiffs dismissed the defendant in 1985 and terminated his licence to occupy the cottage as from the end of January 1986. The judge below found that the defendant did general agricultural work on the holding besides maintenance work and held that he was a ‘qualifying worker’ and his occupation was protected by the Rent (Agriculture) Act 1976. The plaintiffs appealed contending that by his employment as a mechanic he was not employed in agriculture. Held: The appeal was dismissed. The defendant was employed in agriculture. If the defendant’s employment as a mechanic was not itself employment to work in agriculture, it was by implication part of his contract of service that he would do such non-mechanical work as he was reasonably required to do in and about the holding. And his work as a mechanic must be regarded as incidental to agriculture if it is not work in agriculture itself. However, the defendant’s employment as a mechanic was in any event employment to work in agriculture. A farm employee whose job is the maintenance of the machinery is as much employed to work in agriculture as the employee who drives the tractors. The following cases are referred to in this report. Glendyne (Lord) v Rapley [1978] 1 WLR 601; [1978] 2 All ER 110; (1978) 246 EG 573, [1978] 1 EGLR 5, CA Normanton (Earl of) v Giles [1980] 1 WLR 28; [1980] 1 All ER 106, HL Prior, In Re (1927) 43 TLR 784 Smith v Coles [1905] 2 KB 827 This was an appeal by the plaintiffs, William Agnew McPhail and Jean McPhail, from the judgement of Judge McManus in Horsham County Court who had dismissed the plaintiffs’ claim for possession of a cottage occupied by the defendant, Philip Edwin Greensmith. David Gerrey (instructed by Davenport Jones & Co, of Eastbourne) appeared for the plaintiffs; William Batstone (instructed by Fox & Kent, of Chichester) represented the defendant. Giving judgment, FOX LJ said: This is an appeal by the plaintiffs from an order of Judge McManus at Horsham County Court. The plaintiffs have a farm of some 600 acres where they engage in mixed farming. They seek recovery of a farm cottage having a rateable value of £186. The plaintiffs let the defendant into occupation of the cottage in March 1982 as a term of a contract of employment orally agreed between the plaintiffs and the defendant. It was a condition of the contract that the defendant should occupy the cottage for the better performance of his duties. No rent or other payment was made by the defendant or required of him in respect of his occupation. The plaintiffs dismissed the defendant from their employment in December 1985. He was informed that his licence to occupy was terminated as from the end of January 1986. The defendant refused to vacate the premises and asserts that his occupation is protected under the Rent (Agriculture) Act 1976. The defendant’s occupancy is protected by the statute if he is a qualifying worker at the relevant time. ‘Qualifying worker’ is defined in para 1 of Schedule 3 (Part I) to the Act as follows: 1. A person is a qualifying worker for the purposes of this Act at any time if, at that 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. I now turn to para 4(2) of Part I of the Schedule, which is in these terms: 4. — (1)  The provisions of this paragraph shall have effect for determining what is whole-time work in agriculture for the purposes of this Part of this Schedule. (2)  A person works whole-time in agriculture for any week in which — (a)  he is employed to work in agriculture, and (b)  the number of hours for which he works in agriculture, or in activities incidental to agriculture, for the person or persons by whom he is so employed is not less than the standard number of hours. The central question with which we are faced is: ‘Was the defendant employed to work in agriculture?’  If he was, then he succeeds. I will elaborate upon that later. Agriculture is widely defined in section 1(1) of the Rent (Agriculture) Act 1976, which provides: 1.–(1)  In this Act — (a)   ‘agriculture’ includes — (i)    dairy-farming and livestock keeping and breeding (whether those activities involve the use of land or not); (ii)   the production of any consumable produce which is grown for sale or for consumption or other use for the purposes of a trade or business or of any other undertaking (whether carried on for profit or not); (iii)  the use of land as grazing, meadow or pasture land or orchard or osier land; (iv)  the use of land for market gardens or nursery grounds; and (v)   forestry; (b)   ‘forestry’ includes — (i)    the use of land for nursery grounds for trees, and (ii)   the use of land for woodlands where that use is ancillary to the use of land for other agricultural purposes. The evidence, at the trial, of the first plaintiff, Mr McPhail, is recorded in the judge’s notes as follows: Early 1982 took on defendant as employee 22.3.82. I was seeking a man skilled in mechanics — rotary equipment who could mill-drying cereals –229 who could service tractors — combines and so on — and maintain them. In 1982 we had 2 combines — up to 12 tractors — or 4 or 5 ploughs — machinery to make and harvest hay and to harvest cereal crops. We had a full-time mechanic. No question of defendant being required to work on the farm — there has never been any shortage of farm labour. I interviewed defendant — discussed his range of duties. He said he was qualified as an engineer . . . On a number of days he did other work — I accept time-sheets without reserve. I don’t regard hedging as being part of agricultural activity. He was not employed to do anything else. Defendant was not The defendant, as recorded in the judge’s note, said: I saw job advertised ‘Wanted Farm Maintenance Man with tied cottage’. I explained I never worked on farm before. I understood myself to be general farm worker and mechanic. Plaintiff described me as ‘maintenance man’. I kept diary showing work done. 3 diaries relate closely to time sheets . . . I understood that I was principally engaged as farm mechanic. I work on vehicles. I had no previous experience of work on a farm. I have done every major job on tractors. The judge’s finding, as stated in his judgment, was: I am satisfied that the defendant was employed by the plaintiffs primarily as a farm mechanic, but that he did a quite substantial amount of farm work. Time-sheets which are before me show that certainly during the summer months the defendant spent time attending to vehicles, but at others to substantial other work. For example, the second sheet before me shows: ditching, attending to a gate and on the first sheet: muck-scraped Falconers Yard, attended to loading grain on two occasions, attended to conveyer, stock-taking, cleaned dryer, etc. The judge found as a fact that the defendant was employed to work in agriculture and he dismissed the claim for possession. It is clear that the defendant did general work on the farm, which was not purely of a mechanical kind. It is agreed that for the whole of the qualifying period referred to in Schedule 3 he did for some hours per week work which is properly described as work in agriculture. The question which we have to consider is: ‘Was he employed to work in agriculture?’  It is said on behalf of the plaintiffs that he was not, that in effect he was employed as a mechanic. But it is not in doubt that he was from time to time expected to do other work as well as looking after the machinery, though the mechanical side was undoubtedly his main activity. In my view, on the facts before us, it was by implication part of his contract of service that he would do such non-mechanical work as he was reasonably required to do in and about the farm. It seems to me that that was, and was accepted on both sides as being, part of his contract. I think that by implication it was part of his original contract. If it was not part of his original contract, then I think that by agreement his contract was varied from time to time whenever he did the additional work of a non-mechanical kind and that he was accordingly employed to do that work. In the result, in my judgment, he was employed to work in agriculture throughout the qualifying period. If that is right, then it brings him within para 4(2)(a) of the provisions of Schedule 3, Part I of the Act, namely — A person works whole-time in agriculture for any week in which — (a)  he is employed to work in agriculture . . . He is also, in my view, within the provisions of para 4(2)(b) because, on any view of the matter, his work as a mechanic must he regarded as being incidental to agriculture if it is not work in agriculture itself. Keeping the farm machinery in working order must be within the expression ‘work which is incidental to agriculture’. In the result, therefore, the defendant worked for the requisite number of hours, whole time, in agriculture, within the definition which is contained in para 4(2) of Schedule 3, Part I of the Act. I observe that the judge did not find that the defendant was employed solely as a farm mechanic, but that he was employed primarily as a farm mechanic but did substantial other work also. What I have said thus far is enough to decide the case in favour of the defendant. I would however go further. Thus far I have approached the matter on the basis that the defendant’s employment as a mechanic was not itself employment to work in agriculture. In my opinion, however, it is. The defendant was employed to work on the farm. It seems to me quite unreal in modern conditions of mechanised farming to say that the farm mechanic is not employed to work in agriculture. The farm machinery is of crucial importance to the farming operations. Without the machinery in working condition, the farming operations may to a greater or lesser extent come to a halt. It seems to me that the farm employee who keeps a tractor in order, for example, is as much employed to work in agriculture as the man who drives the tractor itself. I find it hard to believe, in the context of this statute, that Parliament has contemplated that the former would have less protection than the latter. ‘The definition’ said Lord Scarman, in Lord Glendyne v Rapley [1978] 1 WLR 601* at p603 (referring to the definition in section 1 of the Act which I have already mentioned) ‘is really directed towards including all operations involved in farming land for commercial purposes of which the one relevant to this appeal is the production of food’. This was approved by Lord Wilberforce in Earl of Normanton v Giles [1980] 1 WLR 28. I refer also to the case of Smith v Coles [1905] 2 KB 827. The headnote reads: A workman was employed on a farm as farm carpenter, and assisted at hay and corn harvests, rick-making, and mangel-carting, and did work like the other farm labourers when he was with them. During three months of the year he was employed as gamekeeper. He sustained an injury by an accident, and applied for and obtained an award of compensation under the Workmen’s Compensation Act, 1900. On appeal:– Held, that there was evidence on which the county court judge could find that the applicant was employed in agriculture within the meaning of the Act. *Editor’s note: Also reported at (1978) 246 EG 573, [1978] 1 EGLR 5. I should briefly refer to each of the three judgments. Lord Collins MR said, at p830: In these circumstances it is not, in my opinion, necessary to decide whether work which is ancillary to the agricultural work of a farm can itself be treated as agricultural work. I am far from saying that employment in work ancillary to agricultural operations is incapable of being classed as agricultural employment. That is a point that it is not necessary to decide, for it does not arise in this case. Then Romer LJ at p831 said: The Legislature has not given a definition, but has only pointed out that the words include certain things as to which there might otherwise have been a doubt. Looking at the words of the Act, and taking them in their popular sense, I think that they cannot be confined to the manual operations of tilling, sowing, and reaping. For instance, suppose a man employed on a farm is mainly occupied in the work of hedging and ditching. I should not be disposed to say that he was not employed in agriculture within the meaning of the Act. Matthew LJ said: The Workmen’s Compensation Act 1900 applied the provisions of the former Act of 1897 to a new class of persons. The statute is comprehensive in its terms, and in my opinion the class of persons usually employed in agriculture were intended to be included in the protection afforded by the Act. We are, however, asked to read into the statute an extensive limitation to the effect that it is only to apply to persons engaged in tilling, sowing, and gathering the produce of a farm. No such limitation is indicated in the Act, and if the argument addressed to us is to prevail extraordinary results would follow. A carter would be excluded from the provisions of the Act, or a man who superintended as foreman the work of the labourers. This Court would be slow to adopt an interpretation of the Act which would introduce exceptions that have not been made by the Legislature. The approach in those judgments and in particular of Matthew LJ seems to me pertinent to the issues in the present case in that it indicates that the word ‘agriculture’ may properly be construed as being of some width and not limited to actual working of the land. I appreciate that the court was construing a different statute. We were referred to the decision in In re Prior 43 TLR 784, which was a decision of Roche J in 1927. That was a case230 concerned with the Unemployment Insurance Act 1920 and the question whether persons were employed in horticulture or agriculture — The employees, one man and five women, are all of them employed by horticulturists or nurserymen, growers of fruit, tomatoes, plants, and flowers, which are sold by the employers either to florists or to buyers in Covent Garden or other markets. The man Prior is a foreman; the women are workers engaged, some for the whole year, and others for particular seasons. The work of the women, so far as is now material, consists in preparing the products of their employers for sale — eg by trimming and washing the plants, selecting and bunching cut flowers, grading the fruit and tomatoes, and packing for dispatch . . . The judge came to the conclusion that they were within the statutory definition. He made some observations to which we were referred. I hope I have now made plain my reasons for my decision and the qualification which I attach to the contention that, in the main, I adopt. The qualification is the exclusion from the exception of certain specialized workers whose own industrial status or occupation is not agricultural or horticultural. I may, however, add as an illustration of such a specialized worker the clerk or bookkeeper who may be employed on or about a large farm or estate but is not, in my opinion, employed in agriculture. At the request of counsel for the minister he drafted a suggested formula in the following terms: Persons are employed in agriculture and horticulture when employed upon any operations done about the production, preparation, or transfer of the products of farm or garden or orchard in the best saleable condition to a first buyer or to a salesman or agent for sale if one be employed, or to a distinct business under one proprietorship as in Daniels’ case. But if the industrial status and occupations of the employed persons are such that, though they are working about or in connexion with a farm or garden or orchard, they may properly be said to be essentially pursuing their own special occupations, they are not employed in agriculture or horticulture within the meaning of this rule. I do not find that decision of assistance in the present case. The observations which the judge made were obiter since, as I understand it, he concluded that the persons were, in fact, engaged in horticulture so the wider questions dealt with in the formula did not arise. But putting that aside, the problem which we have to determine has to be considered in the context of the agricultural industry as it exists today in conditions widely different from those of 1927. The result, in my view, is that the defendant was employed in agriculture within the meaning of that term in the Act. For that reason, and for the reasons which I have already dealt with on the construction of para 4(2) of Schedule 3 Part I of the Act, I conclude that the judge came to the right decision and that this appeal should be dismissed. Agreeing, PARKER LJ said: A combine harvester or a tractor is useless unless someone keeps it in working order and someone else drives it. That Parliament should have intended to give protection to the driver and not to the person who keeps it in working order appears to me to attribute to Parliament an intention which is unreal and unjust. I would not construe the Act to lead to that result, unless driven to do so by authority. Such authority as there is in the case already cited and in Earl of Normanton v Giles [1980] 1 WLR 28 leads to the conclusion that a person who is employed to maintain the machinery of the farm is employed to work in agriculture. It is therefore unnecessary to attribute whimsical intentions to Parliament and I, too, would dismiss this appeal. Appeal dismissed with costs.