England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE BURTON (PRESIDING)
UKEAT/1385/01/SM

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th April 2005

Lord Justice Mummery :

Introduction

1. Lt Col Surinder Saggar (the applicant) is of Indian ethnic origin. He served in the Royal Army Medical Corps (the RAMC) as a military consultant anaesthetist. During the period from May 1982 to September 1998 he worked in Great Britain, save for some work done by him in Bosnia, the Gulf, Germany and Northern Ireland. In September 1998 he was posted to the Sovereign Base Area (the Princess Mary Hospital, Royal Air Force Base) at Akrotiri in Cyprus. It was his last posting before his retirement in January 2002.
2. On 26 April 2000 the applicant presented to the employment tribunal a complaint alleging racial discrimination against him at Akrotiri by the commanding officer between 4 September 1998 and 7 December 1999.
3. Shortly before the substantive hearing in the employment tribunal, which was fixed for 5 days starting on 18 September 2001, the respondent Ministry of Defence raised the question of the tribunal's jurisdiction. In extended reasons sent to the parties on 11 October 2001 the employment tribunal ruled that it had no jurisdiction to hear the complaint. It accepted the contention of the Ministry of Defence that "at all material times the applicant was working wholly outside Great Britain" (paragraph 7 of the extended reasons). It followed that the applicant was not employed at an establishment in Great Britain within the meaning of sections 4(2) and 8(1) of the Race Relations Act 1976 (the 1976 Act). His claim was dismissed for want of "territorial jurisdiction" (paragraph 8 of the extended reasons.)
4. On 10 June 2004 the applicant's appeal was dismissed by the Employment Appeal Tribunal. A wide-ranging judgment given by the President (Burton J) dealt with similar jurisdictional questions raised in two other conjoined appeals involving race and sex discrimination claims brought against the Ministry of Defence by personnel stationed abroad when the alleged acts of discrimination occurred. The appeal tribunal, like the employment tribunal, was bound by the decision of this court in Carver v. Saudi Arabian Airlines [1999] ICR 991(Carver), in which a claim for unfair dismissal was coupled with a claim for sex discrimination. Carver was treated as authority for the proposition that, for the purposes of establishing jurisdiction, it was necessary to consider where, at the time of the alleged discrimination, the applicant was wholly or mainly working. Carver was held to justify the decision of the tribunal that, at that time, the applicant did his work wholly in Cyprus.
5. On 31 August 2004 I granted permission to appeal to this court. The continuing jurisdictional dispute has unavoidably held up the substantive proceedings. If the decisions reached in the tribunals below are correct, the applicant's complaint will never be determined on its merits.

The issue on appeal

6. The issue in this court is whether a question of law arises from the decision of the employment tribunal and, if so, whether the tribunal erred in law. According to the submissions of Mr Robin Allen QC, who appeared for the applicant, there is a question of law of general public importance. It concerns "the territorial jurisdiction of the Race Relations Act 1976." A similar point could arise under the equivalent provisions in the Sex Discrimination Act 1975 (sections 6 and 10) and the Disability Discrimination Act 1995 (sections 4 and 68(2)). The equivalent provisions in the Employment Rights Act 1996 relating to claims for unfair dismissal have always been different.
7. The essential issue is whether the applicant can bring himself within the class of employees, whom Part II of the 1976 Act was passed to protect from acts of racial discrimination in the employment field.
8. Service in the armed forces is not in itself a problem. Although a person serving in the armed forces is not an employee, there being no contract of service, Part II of the 1976 Act applies to service in the armed forces as it applies to employment by a private person: section 75(2). References to a contract of employment include references to the terms of service. The term "employee" will be used to include a member of the armed forces and the term "employer" to include the Ministry of Defence.

Race discrimination and employment: general

9. The subject matter of Part II of the 1976 Act is "Discrimination in the Employment Field." It covers discrimination against a job applicant by a person offering employment "at an establishment in Great Britain", as well as discrimination by an employer against a person employed by him "at an establishment in Great Britain." It has also been held that, in certain circumstances, it covers discrimination by an employer against an employee, whom he has employed at such an establishment: Rhys-Harper v. Relaxation Group plc [2003] ICR 867; Archibald v. Fife Council [2004] ICR 954 at para 24. Whether the case is one of past, present or prospective employment, the necessary link for the purposes of securing protection from racial discrimination in the employment field is between the applicant's employment and an employer's establishment in Great Britain.
10. With the growing globalisation of labour markets and the increasing mobility of workers there are many employees whose work takes them outside Great Britain, but who would nevertheless consider that they have a sufficient link with an establishment in Great Britain to deserve the protection of its anti-discrimination laws in the employment field. In what circumstances are they protected under Part II the 1976 Act? In what circumstances do they lose that protection?
11. To characterise the issue as one of "territorial jurisdiction", as the employment tribunal did (see paragraphs 2 and 8 of its extended reasons), does not shed much light on the problem. Indeed, it does not accurately reflect the basis of protection, as it exaggerates the territorial aspect of Part II of the 1976 Act. Territoriality was the theme of the submission of the Ministry of Defence that "all of the material events took place in Cyprus." In some respects territory is irrelevant to the question whether an employee is protected by Part II of the 1976 Act. The fact that, for example, an act of race discrimination is alleged to have been committed by an employer against an employee outside Great Britain does not of itself deprive the employment tribunal of jurisdiction to determine the complaint. If the employment of the employee is regarded as being at an establishment in Great Britain, Part II of the 1976 Act applies. It does not cease to apply simply because the employee was outside Great Britain, either at work or even away from work, at the time when the alleged racial discrimination occurred or because the alleged acts of discrimination took place outside Great Britain.
12. As will be explained, the history of the employment relationship has a greater bearing on protection from racial discrimination than the geography of where the alleged discriminatory acts occurred or where the applicant was when they occurred. The focus of the provisions in Part II defining who is entitled to protection is on whether "employment" is to be regarded as being at an establishment in Great Britain and on whether the employee "wholly or mainly" does his work outside Great Britain.
13. Unfortunately it has not proved possible (and it probably never will be possible) to achieve legal certainty in this area, either by the legislation or by the judicial interpretation of it. The practical difficulty in framing the legislation and in judicial generalisations about its effect is that employment relationships are increasingly complex, flexible and dynamic: they can endure for varying lengths of time; during the course of the relationship places, patterns and countries of employment can change; acts of discrimination may occur before the employment begins, during the period of employment or after the employment is over; and the discrimination may be a one-off act in one place, or a number of one-off acts in different places, or it may be an act extending over a period in one place or in a number of different places. In these circumstances it is difficult to find a satisfactory formula for fixing the boundaries of protection from discrimination and of the jurisdiction of the employment tribunal to determine complaints.

Sovereign Base Area

14. The status of the Sovereign Base Area at Akrotiri has been clarified. At the request of the court counsel carried out further researches after the oral hearing in order to explain why, for the purposes of the 1976 Act, it is outside Great Britain. According to notes submitted to the Court by Mr Robin Allen QC and the Treasury Solicitor it is common ground that Akrotiri is outside Great Britain for the purposes of Part II of the 1976 Act. It came into existence as a Sovereign Base Area as a result of the Cyprus Act 1960 and the creation of the independent Republic of Cyprus. It is territory of the Crown. It has enjoyed the status of a British Overseas Territory since the British Overseas Territories Act 2002, having previously been a British Dependent Territory. That status does not, however, make the Sovereign Base Area part of Great Britain for the purposes of the 1976 Act.

The legislation

15. The question of law on this appeal turns on the construction of sections 4 and 8 of the 1976 Act. At the time of the alleged discrimination they had not been amended. By virtue of section 4 the protection against the specified unlawful acts of racial discrimination is conferred in relation to employment "at an establishment in Great Britain." "Employment" is defined, unless the context otherwise requires, as "employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly": section 78(1).
16. The version of section 8 in force at the date of the alleged acts of discrimination contained the following provisions on the meaning of "employment at an establishment in Great Britain." (The special provisions relating to employment on board a ship registered at a port of registry in Great Britain or on an aircraft or hovercraft registered in the United Kingdom are not material to this case).

" "(1) For the purposes of this Part ("the relevant purposes"), employment is to be regarded as being at an establishment in Great Britain unless the employee does his work wholly or mainly outside Great Britain.

"(4) Where work is not done at an establishment it shall be treated for the relevant purposes as done at the establishment from which it is done or (where it is not done from any establishment) at the establishment with which it has the closest connection."

17. Sections 4 and 8 should be interpreted to promote their legislative purpose and with as much good sense as their language allows. Some general points can be made about the sections and their legal setting before the decisions of the tribunals below and the relevant authorities are considered.

(1) It is self evident that the purpose of Part II of the 1976 Act was the protection of particular classes of person from race discrimination in the employment field. They include applicants for employment, as well as persons already in employment. The purpose of section 8 was to define further the meaning of "employment at an establishment in Great Britain" and thereby differentiate between those employees who were protected and those employees who were excluded from protection. The crucial question is whether the applicant is, as the employment tribunal held, excluded from protection, because he did his work wholly in Cyprus during the period of the alleged acts of discrimination (September 1998 to December 1999); or whether he is included, as he contends, because, notwithstanding his posting to Akrotiri, he did his work mainly in Great Britain and his employment, considered as a whole, is to be regarded as being at an establishment in Great Britain.

(2) "Employment" is apt to describe the total relationship between an employer and an employee. It is usually created and governed by contract. It has legal content: there are mutual rights and obligations. There may be express agreement on employment at a particular establishment in Great Britain. It may be possible to imply such a term. There is likely to be a mobility clause entitling the employer to direct the employee where he should do his work from time to time. The employment relationship also has a factual content: for example, the manner in which the relationship is actually operated by the parties over the period of time for which it continues. As with other relationships, changes inevitably take place over time. Legislation and contract may cater for anticipated changes in the employment relationship.

(3) Statutory protection is conferred in relation to employment at an establishment in Great Britain. The focus is on the situation of "employment at an establishment", rather than on separate individual aspects of the employment relationship, such as the geographical situation of the employer, or of the employee, or where the contract of employment was made and what it provided, or where the specific acts of discrimination were allegedly committed against the prospective, present or past employee.

(4) The start position on the situation of employment is set by section 8(1): employment "is to be regarded as being" at an establishment in Great Britain. As Neill LJ held in Haughton ...cited in paragraph 34 below) at p.364 those words

"are not there to create a statutory presumption but to provide for an all-embracing definition to cover all employment other than that which is excluded specifically."

(5) Employment is not to be regarded as being at an establishment in Great Britain if the applicant "does his work wholly or mainly outside Great Britain." If that is the case, the applicant is excluded from protection and the employment tribunal has no jurisdiction to determine a claim of race discrimination. That would be so, even if the alleged act of discrimination was committed against an employee in Great Britain.

(6) A complaint to an employment tribunal must relate to an unlawful act committed against the complainant contrary to Part II of the 1976 Act: section 54(1). A person has no right to complain to the employment tribunal about acts of race discrimination, if, at the time when they were committed, it was lawful to commit them against the complainant. If the complainant did his work wholly or mainly outside Great Britain at the time of the alleged discrimination, he had no right to present a complaint of race discrimination to the tribunal. Section 8(1) excluded him from the protection of Part II.

(7) How does the employment tribunal determine whether or not an applicant did his work "wholly or mainly outside Great Britain"? There is no express provision in Part II preventing the employment tribunal from taking into account the fact that, before the period during which the alleged unlawful acts of discrimination occurred, the employment of the applicant was at an establishment in Great Britain. On the contrary, it is, I think, implicit in the "wholly or mainly" formulation in section 8(1) that, on a challenge to the applicant's assertion that his employment was at an establishment in Great Britain, the tribunal should take into account the employment of the complainant over a longer period of time than the period to which the alleged acts of discrimination relate. What is the relevant period of time for this purpose? That is the key question, to which I shall return when considering the decisions of the employment tribunal and the appeal tribunal.

Later amendments

18. Although the outcome of this appeal is unaffected by them, the later amendments to section 8 should be noted as a reminder of the changing features of the jurisdictional map. The legislative history is one of progressive enlargement of the jurisdiction of the employment tribunal in cases of discrimination.
19. The general approach to the context and construction of section 8 affects the operation of the amended provisions, in particular, to identifying relevant periods of time for the purpose of deciding, for example, whether under the amended provisions an applicant works "wholly outside Great Britain" or works "wholly or partly in Great Britain."

A. 16 December 1999-19 July 2003

As a result of the amendments made by regulation 3(2) of the Equal Opportunities (Employment Legislation)(Territorial Limits) Regulations 1999 (SI 1999 No 3163) in order to implement the Posted Workers Directive 96/71/EC the words "or mainly" were omitted from subsection (1) of section 8 of the 1976 Act. Similar amendments were made to the Sex Discrimination Act 1975 (section 10(1)) and a new section was substituted for section 68(2) of the Disability Discrimination Act 1995 to the effect that "Where an employee does his work wholly outside Great Britain, his employment is not to be treated as being work at an establishment in Great Britain."

B. Post-19 July 2003

As a result of the amendments made by the Race Relations Act 1976 (Amendment) Regulations 2003 section 8 of the 1976 Act now focuses initially on whether the applicant works in Great Britain before proceeding to deal with the case of the person who works wholly outside Great Britain and the circumstances in which the tribunal would have jurisdiction over such a case. Section 8 now reads as follows:-

"8 (1) For the purposes of this Part ("the relevant purposes"), employment is to be regarded as being at an establishment in Great Britain if the employee-

(a) does his work wholly or partly in Great Britain;or

(b) does his work wholly outside Great Britain and subsection (1A) applies.

(1A) This subsection applies if, in a case involving discrimination on grounds of race or ethnic or national origins, or harassment-

(a) the employer has a place of business at an establishment in Great Britain;

(b) the work is for the purposes of the business carried on at that establishment; and

(c) the employee is ordinarily resident in Great Britain-

(i) at the time when he applies for or is offered the employment, or

(ii) at any time during the course of the employment."

The employment tribunal

20. In its extended reasons (see paragraph 7) the employment tribunal stated that the respondent's case was that "at all material times the applicant was working wholly outside Great Britain"; rejected the applicant's contention that section 8 did not give effect to the provisions of the Treaty of Rome relating to the free movement of workers; recorded that it was common ground that the Sovereign Base Area was not part of Great Britain or of the European Community; and concluded :

"…..In these circumstances since all of the acts alleged to constitute discrimination occurred when the applicant was working outside Great Britain ….the conclusion must be that the tribunal has no jurisdiction to consider the applicant's complaint under section 54 of the Race Relations Act."

21. The tribunal added the comment (see paragraph 8) that

" This result was something of an anomaly. The applicant had in fact been continuously employed by the Ministry of Defence at an establishment based in the UK from 1982 and was continuously stationed in the UK until his posting to Cyprus in September 1998 although of course after that date he remained an employee of the Ministry of Defence…Accordingly notwithstanding that the applicant continued to be employed by the same employer and working with other employees of the same employer who are alleged to have discriminated against him he has, by his posting, lost the protection of the Race Relations and Sex Discrimination Acts."

The Employment Appeal Tribunal

22. The Employment Appeal tribunal upheld the decision, stating that the tribunal had asked the correct question,

"31. …by reference to the period of time in which the question of where the applicant worked must be answered. So far as concerned Lt Col Saggar, the only possible answer was that he wholly worked in Cyprus during the period, and did not wholly work in Great Britain, such that his application was rightly dismissed, as must be his appeal." (emphasis added)

23. The Employment Appeal Tribunal regarded the "period of time" and "during the period" and counsel for the Ministry of Defence referred to " all material times" as confined to the period during which the applicant was allegedly discriminated against. They did so on the basis that that period was "the time of the alleged discrimination" mentioned in the passage cited from Carver in paragraph 30 below and that only that period was relevant to the issue whether the applicant did his work wholly or mainly outside Great Britain.

Discussion and conclusions

24. In my judgment, both the employment tribunal and the appeal tribunal misconstrued section 8(1) and misinterpreted the decision in Carver as requiring them to reach a result correctly described by the employment tribunal as "something of an anomaly." The error of law was in only taking into account the period of time to which the complaints of discrimination related (i.e. the time in Akrotiri between September 1998 and December 1999 while the applicant did his work there) for the purpose of deciding whether he wholly or mainly did his work outside Great Britain. No account at all was taken of any earlier period of time during which employment of the applicant was at an establishment in Great Britain.
25. I would agree that, if the employment tribunal's approach to section 8(1) is correct, the tribunal reached the right conclusion. In my judgment, however, the correct question was never addressed. The applicant was only excluded from protection from discrimination by section 8(1) if he did his work "wholly or mainly" outside Great Britain. If the only relevant period of time is that during which the alleged discrimination took place, the result in this case is that he did his work wholly outside Great Britain. That is a very surprising result. It leaves no room at all for the operation of section 8(1) in relation to work done "mainly outside Great Britain." That expression presupposes the existence of a longer period of employment than that to which the complaint of discrimination relates. It presupposes a longer period of time during part of which the applicant did his work in Great Britain. It presupposes the need to make a judgment on a comparison between the work done outside Great Britain and the work done in Great Britain. If a longer period should be taken into account, as I think it should, what is it?
26. I return to section 8(1). The initial position is set by the opening words: the employment is to be regarded as at an establishment in Great Britain. That is so wherever the alleged discrimination took place. The initial position does not apply and protection is excluded if the applicant did his work "wholly or mainly" outside Great Britain. Although the right to present a complaint to an employment tribunal has to be addressed by reference to the situation of the employment of the applicant as at the time of the alleged unlawful discrimination, there is no express or implicit requirement that, in deciding whether the applicant did his work wholly or mainly outside Great Britain at that time, account should only be taken of where the applicant did his work during the period of time to which the complaint of discrimination related.
27. In my judgment section 8(1) contemplates that the relevant period for determining whether the applicant did his work wholly or mainly outside Great Britain is the whole period of employment. "Employment" is the entire relationship between employer and employee. It extends over a period of time. Normally the employment should be taken into account as a whole and not in segments. This approach is indicated by the opening words of section 8(1), under which employment has a continuing existence ("being") and a continuing location ("at an establishment in Great Britain"). The latter part of section 8(1) ("unless the employee does his work wholly or mainly outside Great Britain") also indicates that the whole period of the employment relationship, not just the limited period during which the discrimination is alleged to have occurred, is the yardstick by which it is determined whether, at the time of the alleged discrimination, the employee wholly or mainly did his work outside Great Britain.

The authorities

28. In my judgment, none of the authorities cited as binding on this court prevent the court from construing Part II of the 1976 Act in the above manner. The cases do not require this court to hold that, as a result of being posted to Akrotiri towards the end of his service, the applicant lost all the protection that he might have acquired under Part II by virtue of earlier employment at establishments in Great Britain over the previous 16 years or so.
29. I would reject the principal contention of Mr Linden, appearing for the Ministry of Defence, that the issue in this case has been determined in its favour by the decision of the Court of Appeal in Carver. The principal issue in that case was whether, for the purposes of jurisdiction to hear an unfair dismissal claim arising from an alleged constructive dismissal, the complainant's employment was under a contract of employment under which she "ordinarily works outside Great Britain" (section 192(2) Employment Rights Act 1996, repealed by section 32(3) Employment Relations Act 1999). The complainant was a flight attendant employed under a contract dated 16 April 1986. It was expressed to be subject to Saudi Arabian law regardless of where she was based. After training she was employed in India for 4 years. At the time of her "resignation" she had been working for about 6 years on tours of duty to Middle East destinations which began and ended at Heathrow. The tribunal held that under her contract of employment she "ordinarily worked" outside Great Britain. That decision was upheld on appeal.
30. There was also a claim of sex discrimination in Carver. The employment tribunal was held by the Court of Appeal (at p1003A-D) to have wrongly applied the test of jurisdiction applicable to a claim for unfair dismissal to the different claim of sex discrimination under the 1975 Act. As Mantell LJ (with whom Beldam and Ward LJJ agreed) explained :

"The tribunal had to consider where at the time of the alleged discrimination the applicant was "wholly or mainly working" see Haughton v. Olau(UK) Ltd [1986] ICR 357 in the Court of Appeal. However, the tribunal decided jurisdiction on where the applicant was ordinarily working. That was impermissible. In so far was the tribunal purported to make a finding of fact as to where the applicant was wholly or mainly working it seems to me that it did so without any evidential basis….I would hold the finding to be without any foundation and as such to amount to an error of law. I would be minded, therefore, to remit the question of jurisdiction under the Sex Discrimination Act 1975 to the tribunal, differently constituted, with a direction to determine the question of jurisdiction on the basis of where the applicant wholly or mainly did her work at the relevant time. I would also suggest that "mainly" be given its literal meaning of "for the most part" or, as Eveleigh LJ would have it in Todd [1978] ICR 959,967B, "on a balance of weight..."

31. The ratio of Carver is that, in relation to a person who does his work outside Great Britain, the statutory criteria governing the right to present a complaint of sex discrimination to an employment tribunal are different from those governing unfair dismissal. It is obviously erroneous in law for a tribunal to apply the latter to the former, as the tribunal did in that case.
32. The Court of Appeal did not, in my view, decide the critical issue arising in this case, namely what is the relevant period of time by reference to which it should be decided whether the applicant did his work "wholly or mainly" outside Great Britain. It was argued by Mr Linden that in the opening words of the passage cited in paragraph 30 above the Court of Appeal decided that the proper test was to ask where the complainant "wholly or mainly" did his work as at a particular point of time, and that that meant that the only relevant period of time was that to which the complaints of discrimination related. I do not agree with that reading of the judgment. The context of those remarks was the ruling by the Court of Appeal that the tribunal had wrongly applied to a sex discrimination claim the different jurisdictional criteria applicable to unfair dismissal claims.
33. As explained earlier, I agree that the questions of the jurisdiction of the tribunal and the right to present a complaint to it have to be considered as at the time of the alleged unlawful discrimination. The tribunal must decide whether, at that time, the applicant "wholly or mainly" did his work outside Great Britain. Carver did not, however, lay down a test of how the question of "wholly or mainly" was to be answered or hold that that question was to be answered solely by reference to the period of time during which the alleged discrimination occurred, disregarding the whole of the earlier history of his employment at establishments of the employer in Great Britain. In deciding whether an employee did his work "wholly or mainly" outside Great Britain the tribunal is not precluded by Carver from taking the whole employment relationship into account. Carver decided what criteria did not apply to jurisdiction over a discrimination claim, but no attempt was made to analyse the criteria which should have been applied. There was no need to do so. The decision to remit was justified by the error in treating the same criteria as applying to both unfair dismissal and sex discrimination. Carver does not dispose of this appeal in favour of the Ministry of Defence.
34. The case of Haughton v. Olau Line (UK) Ltd [1986] ICR 357 cited by Mantell LJ in Carver was concerned with a complaint of sex harassment and discrimination on board a ship. It is of no assistance. It did not deal with the period of time which the tribunal should consider in deciding whether a person did his work "wholly or mainly outside Great Britain". In that case the complainant worked as a cashier on the ferry sailing between Sheerness and Flushing. The ship was registered in Hamburg, but was owned by a company registered in England with offices in Sheerness. The complainant was not moved to work at her job in another establishment of the employer in another country. The case only decided that the ship was "an establishment "and that the complainant did her work mainly outside the territorial waters of Great Britain on a ship that was not registered in Great Britain.
35. Deria v. General Council of British Shipping [1986] ICR 172 was also cited. It was a case of alleged race discrimination by an employment agency against a job applicant in relation to recruitment to work on a British registered ship, which was not an establishment in Great Britain at the relevant time. At the time of refusal it was not contemplated or expected by the parties that the ship would even enter British territorial waters in the course of the voyage for which the complainants sought to be engaged. (The ship only did so by reason of subsequent requisition.) The court did not address the question of the correct period of time for deciding whether a complainant wholly or mainly did his work in Great Britain i.e. whether it was the whole period of the applicant's employment or only the period of time to which the alleged discrimination related.

Result

36. I would allow the appeal. The employment tribunal never fully investigated the relevant facts about the applicant's whole employment. This was the result of taking too narrow an approach in law to the relevant period of time for deciding whether the applicant "wholly or mainly" did his work in Great Britain within section 8(1). The tribunal erred in law in only taking account of the period during which the alleged discrimination occurred i.e. from September 1998 to December 1999 at Akrotiri. None of the authorities binding on this court required or entitled the tribunal to disregard the whole of the rest his employment by the Ministry of Defence outside the period of the alleged discrimination.
37. It will accordingly be necessary to remit the matter to a different tribunal to determine the issue of jurisdiction in accordance with this judgment.
38. The court is not prevented from taking this course by the fact that the applicant's legal representative in the employment tribunal chose to argue the case (unsuccessfully) on the basis that the Ministry of Defence's contention that the applicant did his work wholly in Cyprus was incompatible with EC law. There was no clear concession by the applicant's representative on matters of evidence. As there was an error of law by the tribunal on the construction of section 8, this court has jurisdiction to hear and allow the appeal and to remit the matter for rehearing. The rehearing of the issue of jurisdiction should be conducted on the basis that the applicant's whole period of employment by the Ministry of Defence must be taken into account by the tribunal in deciding whether, at the time of the alleged discrimination, the applicant did his work wholly or mainly outside Great Britain.

Lord Justice Tuckey:

39. I agree.

Lord Justice Clarke:

40. I also agree.