judgement:
This case is about the employment status of individuals who are resident in Great Britain and are employed by a British company but who travel to and from home to work overseas.
Halliburton Manufacturing & Services Ltd (the appellant) is a UK company which is based at Dyce, near Aberdeen.
It is one of about 70 subsidiary or associated companies of Halliburton Inc, which is a US corporation.
It supplies tools, services and personnel to the oil industry.
The employee, Ismail Ravat (the respondent), lives in Preston, Lancashire and is a British citizen.
He was employed by the appellant from 2 April 1990 as an accounts manager until he was dismissed with effect from 17 May 2006.
The reason for his dismissal was redundancy.
The respondent complains that he was unfairly dismissed.
The complication in his case is that at the time of his dismissal he was working in Libya.
The question is whether the employment tribunal has jurisdiction to consider his complaint.
An employment tribunal sitting in Aberdeen (Mr RG Christie, sitting alone) held on 23 November 2007 that it had jurisdiction.
That decision was set aside by the Employment Appeal Tribunal (Lady Smith, sitting alone) in a judgment which was given on 14 November 2008.
The respondent appealed under section 37(1) of the Employment Tribunals Act 1996 to the Inner House of the Court of Session.
On 22 June 2010 an Extra Division (Lord Osborne and Lord Carloway, Lord Brodie dissenting) allowed his appeal: 2011 SLT 44.
The appellant now appeals to this court.
The question whether the respondents complaint of unfair dismissal can be heard in Scotland is, as the decisions below show, not an easy one to answer.
Section 94(1) of the Employment Rights Act 1996 provides: An employee has the right not to be unfairly dismissed.
Section 230(1) of that Act provides that employee means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.
Neither of these provisions contains any geographical limitation.
Nor is any such limitation to be found anywhere else in the Act.
As Lord Hoffmann observed in Lawson v Serco Ltd [2006] UKHL 3, [2006] ICR 250, para 1, the statement in section 244(1) that the Act extends to England and Wales and Scotland means only that it forms part of the law of Great Britain and does not form part of the law of any other territory, such as Northern Ireland (to which the subsection states the Act does not apply), for which Parliament could have legislated.
Yet it is plain that some limitation must be implied.
As Lady Hale noted in Duncombe v Secretary of State for Children, Schools and Families (No 2) [2011] UKSC 36, [2011] ICR 1312, para 5, it was agreed in that case that section 94(1) could not apply to all employment anywhere in the world.
That must indeed be so: see also Lawson, para 6, where Lord Hoffmann said that all the parties in that case were agreed that the scope of section 94(1) must have some territorial limits.
But this does not solve the problem as to where the line is to be drawn between those cases to which section 94(1) applies and those to which it does not.
It is not straightforward.
As Louise Merrett, The Extra Territorial Reach of Employment Legislation (2010) 39 Industrial Law Journal 355, has pointed out, increasing labour mobility together with the proliferation of multinational companies and groups of companies has made the international aspects of employment law important in an ever growing number of cases.
The present case is an illustration of the problems that this gives rise to.
The facts
As I have already said, the respondent was working in Libya when his employment was terminated.
From 1990 to 1995 he worked for the appellant in London.
For the remainder of the period that he was employed by it he worked overseas, initially in Algeria.
In March 2003 he was offered and accepted a transfer to Libya.
The arrangement was on what was known as a commuter or rotational basis: employment tribunals judgment, para 5.
The appellant described the respondents status in documentation attached to his employment contract as that of a UK commuter.
This was because he continued to live in Great Britain and travelled to and from his home to work for short periods overseas.
He worked for 28 consecutive days in Libya, followed by 28 consecutive days at home in Preston.
In effect he was job sharing, working back to back with another employee.
During the 28 days when he was at home the work was done in his place by another employee on the same arrangement.
His rotational work pattern was in accordance with the appellants international commuter assignment policy.
Some of its overseas employees were accorded expatriate status.
But that was not done in the respondents case because he did not live abroad full time.
His travel arrangements and costs for commuting between his home in Preston and his workplace in Libya were paid for by the appellant.
The work that the respondent carried out in Libya was for the benefit of Halliburton Co Germany GmbH, which was another subsidiary or associated company of Halliburton Inc. The German company was charged by the appellant for the respondents services.
His duties included dealing with statutory compliance in relation to tax, audits and financial control and ensuring that all day to day transactions were reported to the German company in Germany.
He reported on a daily basis to an operations manager based in Libya, but on policy and compliance issues he reported to an African Region Finance Manager, Mr Strachan, who was employed by another UK Halliburton subsidiary, Halliburton Management Ltd, based in Cairo.
On human resources his contact was with the appellants human resources department in Aberdeen and with another of its employees who was its human resources representative in Libya.
The respondent had little by way of day to day contact with the Aberdeen office while he was in Libya, and he had no formal obligation to do any work during the 28 days while he was at home.
Any duties that he performed in Great Britain, such as responding while at home to emails, were incidental to that overseas employment.
A feature of the appellants commuter policy was that while he was working on a foreign assignment the employees terms were such as to preserve the benefits, such as pay structure and pensions, for which he would normally be eligible had he been working in his home country other than those which were purely local such as a car allowance: employment tribunals judgment, para 6.
The respondent was remunerated on the normal UK pay and pension structure that applied to the appellants home based employees.
He was paid in Sterling into a UK bank account, and he paid UK income tax and national insurance on the PAYE basis.
In 2003, when he started work in Libya, the respondent was concerned to know whether his employment contract would remain governed by UK employment law: employment tribunals judgment, para 13.
He asked his manager there what his position was and was assured that he would continue to have the full protection of UK law while he worked abroad.
He was given a copy of a document in which overseas managers were told to contact the appellants human resources team in Aberdeen when they were considering action in relation to poor performance, misconduct, dismissal or redundancy.
The decision to dismiss him was taken by Mr Strachan of Halliburton Management Ltd under guidance from the Aberdeen human resources department.
The respondent then invoked the appellants UK grievance procedure, as he was advised that he was entitled to do by the human resources department.
The grievance hearing, the redundancy consultations and the respondents appeal against his dismissal all took place in the appellants offices in Aberdeen.
The respondent received a redundancy payment from the appellant.
It was stated to have been paid to him in accordance with the Employment Rights Act 1996: see section 135, which confers the right to a redundancy payment to an employee who is dismissed by the employer by reason of redundancy.
The implied limitation
The question as to what connection between Great Britain and the employment relationship was required to confer rights on employees working abroad was considered in Lawson v Serco Ltd [2006] UKHL 3, [2006] ICR 250.
Three appeals were heard together in that case, as illustrations of the situations in which the question of territorial scope might arise.
Mr Lawson was employed as a security adviser at the British RAF base on Ascension Island.
Mr Botham was employed as a youth worker at various Ministry of Defence establishments in Germany.
Mr Crofts was a pilot employed by a Hong Kong airline but was based at Heathrow.
Having been presented with these examples, the appellate committee sought to identify the principles which should be applied to give effect to what Parliament might reasonably be supposed to have intended and attributing to Parliament a rational scheme: para 23, per Lord Hoffmann.
As Lord Hoffmann, with whom all the other members of the committee agreed, observed in the final sentence of that paragraph, that involved the application of principles, not supplementary rules.
Lord Hoffmann took first what Parliament must have intended as the standard, normal or paradigm case: the employee who was working in Great Britain at the time of his dismissal: paras 25, 27.
Then there were peripatetic employees.
The former rule, which was introduced by section 22 of the Industrial Relations Act 1971, was that the right not to be unfairly dismissed did not apply to an employment where under his contract of employment the employee ordinarily works outside Great Britain.
The solution that was adopted in the application of that formula to peripatetic employees was to ask where the employee was based: Wilson v Maynard Shipbuilding Consultants AB [1978] QB 665, per Megaw LJ; Todd v British Midland Airways Ltd [1978] ICR 959, 964, per Lord Denning MR.
Adopting this approach, Lord Hoffmann said that the common sense of treating the base of a peripatetic employee as, for the purposes of the statute, his place of employment remained valid: para 29.
That dealt with the case of Mr Croft, the airline pilot, who was based at Heathrow.
This left the cases of Mr Lawson and Mr Botham, neither of whom was working in Great Britain at the time when he was dismissed.
Lord Hoffmann called them expatriate employees, and he acknowledged that the problem in their case was more difficult: para 35.
He recognised that the circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation.
But he thought there were some who did, and that one should go further and try, without drafting a definition, to identify the characteristics which such exceptional cases will ordinarily have: para 36.
He then mentioned a number of characteristics which should be regarded as sufficient to take such cases out of the general rule that the place of employment is decisive.
It would be very unlikely that someone working abroad would be within the scope of section 94(1) unless he was working for an employer based in Great Britain.
But that would not be enough.
Something more was necessary: para 37.
He went on in paras 38 39 to give examples of cases in which section 94(1) might apply to an expatriate employee: the employee posted abroad to work for a business conducted in Great Britain, and the employee working in a political or social British enclave abroad, which were sufficient to cover the cases of Mr Lawson and Mr Botham.
In para 40 he added this comment: I do not say that there may not be others, but I have not been able to think of any and they would have to have equally strong connections with Great Britain and British employment law.
Pausing there, it is plain that it would be difficult to fit the respondents case into any of the categories identified by Lord Hoffmann in Lawson.
He was not working in Great Britain at the time of his dismissal.
He was not a peripatetic employee.
He was not working abroad as an expatriate in a political or social British enclave.
Nor had he been posted abroad to work for a business conducted in Great Britain, as he was commuting from his home in Preston and the company for whose benefit he was working in Libya was a German company.
But in Duncombe v Secretary of State for Children, Schools and Families (No 2) [2011] ICR 1312, para 8 Lady Hale sounded a salutary warning against that approach to the problem.
After summarising the principles that were to be derived from Lawson, she said: It is therefore clear that the right will only exceptionally cover employees who are working or based abroad.
The principle appears to be that the employment must have much stronger connections both with Great Britain and with British employment law than with any other system of law.
There is no hard and fast rule and it is mistake to try and torture the circumstances of one employment to make it fit one of the examples given, for they are merely examples of the application of the general principle.
One has to search quite carefully through Lord Hoffmanns speech for statements of general principle.
But they are there.
In para 1 he said: Putting the question in the traditional terms of the conflict of laws, what connection between Great Britain and the employment relationship is required to make section 94(1) the appropriate choice of law in deciding whether and in what circumstances an employee can complain that his dismissal was unfair? The answer to this question will also determine the question of jurisdiction, since the employment tribunal will have jurisdiction to decide upon the unfairness of the dismissal if (but only if) section 94(1) is the appropriate choice of law.
In para 36, having said that the circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation but that he thought that there were some who do, he said: I hesitate to describe such cases as coming within an exception or exceptions to the general rule [that section 94(1) applies to persons employed in Great Britain] because that suggests a definition more precise than can be imposed upon the many possible combinations of factors, some of which may be unforeseen.
Mr Crow submitted that in principle the test was whether, despite the workplace being abroad, there are other relevant factors so powerful that the employment relationship has a closer connection with Great Britain than with the foreign country where the employee works.
The response that Lord Hoffmann then gave to that submission needs to be carefully noted: This may well be a correct description of the cases in which section 94(1) can exceptionally apply to an employee who works outside Great Britain, but like many accurate statements, it is framed in terms too general to be of practical help.
I would also not wish to burden tribunals with inquiry into the systems of labour law of other countries.
In my view one should go further and try, without drafting a definition, to identify the characteristics which such exceptional cases will ordinarily have.
Lord Hoffmann was dealing in that passage with those whom he had called expatriate employees.
Mr Crow appeared for the Secretary of State for Foreign and Commonwealth Affairs and the Ministry of Defence, whose interest was to argue that the employment tribunal did not have jurisdiction to hear Mr Bothams claim for unfair dismissal.
Lord Hoffmanns rejection of Mr Crows test as too general to be of practical help in that context, where it was possible to identify the guiding characteristics more precisely, is understandable.
But it is important not to lose sight of the fact that he acknowledged that the principle that Mr Crow had identified might well be a correct description of the cases in which section 94(1) could exceptionally apply to an employee who works outside Great Britain.
He also described it as an accurate statement.
His reasons for declining to adopt it in the case of the expatriate employees were (1) that it was framed in terms that were too general to be of practical help in their case and (2) that tribunals should not be burdened with inquiry into the systems of labour law of other countries.
But I do not see these as reasons for rejecting it in a case such as this which cannot readily be fitted into one or other of Lord Hoffmanns three categories.
Neither of the specific examples of expatriate employees given by Lord Hoffmann in Lawson applied to the employees in Duncombe.
They were teachers employed by the British Government to work in European schools abroad.
They were employed in an international enclave, not a British enclave.
But their employment had no connection with the country where they happened to work.
Also discussed in Duncombe were the cases of Wallis and Grocott, who were employed by the British government in NATO establishments in Europe where their servicemen husbands were working (Ministry of Defence v Wallis [2011] ICR 617).
The Secretary of States argument that their cases did not come within the scope of section 94(1) because they fell within neither of the cases identified as exceptional in Lawson was rejected.
In para 16 of Duncombe Lady Hale, delivering the judgment of the court, said: In our view, these cases do form another example of an exceptional case where the employment has such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it is right to conclude that Parliament must have intended that the employees should enjoy protection from unfair dismissal.
She went on to identify what in para 17 she referred to as a very special combination of factors on which that conclusion depended.
They included the fact that the teachers and the wives were employed under contracts governed by English law, which she said must be relevant to the expectation of each party as to the protection which the employees would enjoy.
The respondents case does not fall within the further example of the expatriate employee within the scope of section 94(1) provided by Duncombe.
But Lady Hales remark in para 8 that it is a mistake to try and torture the circumstances of one employment to make it fit one of the examples given, for they are merely examples of the application of the general principle, is directly in point.
The judgment in that case was delivered on 15 July 2011, just over a year after the date when the judges of the Extra Division delivered their opinions.
Their reasoning and that of Mr Christie in the employment tribunal and Lady Smith in the Employment Appeal Tribunal was based entirely on the guidance that they took from Lord Hoffmanns speech in Lawson.
They did not have the advantage of reading Lady Hales judgment in Duncombe.
The decisions below
The differences of opinion in the employment tribunal, the EAT and the Extra Division are striking.
On the one hand, the respondents case was seen as that of an expatriate employee whose case could not be brought within Lord Hoffmanns examples of cases falling within that category.
On the other, it was seen as a case which could be resolved in the respondents favour by applying principles that can be derived from his analysis.
In the employment tribunal Mr Christie said in para 39 of his judgment that, having regard to what he took to be the general principle to be applied in the case of employees working outside Great Britain, it did not seem to him to be necessary as a first step to place any particular claimant into one or other of Lord Hoffmanns categories: Nothing which he says suggests that that is an essential.
It seems perfectly conceivable that an employee may have his place of work in another country abroad, but carries it out in a manner or in circumstances where he cannot properly be described as peripatetic or expatriate, and yet be operating in an employment relationship which has a substantial connection with the UK.
Prior to coming to this particular case, I have had in mind a British citizen who, for example, works abroad on what is often referred to as a rotational system of working, say, four weeks in Africa followed by three weeks on leave at home with his family in, say, Edinburgh and so on, following the pattern.
He referred in the next paragraph, by way of analogy, to the oil rig worker who was flown out to the Continental Shelf to work for two weeks and was then flown back to stay at home in, say, Dundee for the next two weeks.
He did not become peripatetic merely because the rig he might be transferred to was in the Norwegian sector or was off the coast of West Africa.
Having examined all the circumstances peculiar to this case, he concluded in para 54 of his judgment that there remained a sufficiently substantial connection between the employment relationship and Great Britain to enable him to hold that the tribunal had jurisdiction.
In the Employment Appeal Tribunal Lady Smith said in para 14 of her judgment that she took from Lord Hoffmanns judgment that the fact that an employee was recruited by a British company in Great Britain to work for it abroad would not, in itself, be enough for jurisdiction.
She referred to the principle identified by him in para 1 of his speech for the appropriateness of recognising jurisdiction in each case (see para 14, above).
She then examined what she referred to as his discussion of the different categories into which a persons employment could fall in a case where the jurisdiction question arises.
In para 18 she noted that in his discussion of the expatriate category Lord Hoffmann did not approve of a test of substantial connection.
On the contrary, he was saying that it was not enough.
In para 35 she said that she was satisfied that the tribunal erred in law: It applied a test of substantial connection with Great Britain and should not have done so.
A test of substantial connection falls far short of the criteria inherent in the principles identified by Lord Hoffmann, to which principles I have already referred.
It also took account of the proper law of the parties contract and the reassurances given to the claimant by the respondents about the availability to him of UK employment law, neither of which was relevant.
In paras 37 38 she said that the respondent fell plainly within Lord Hoffmanns third category the expatriate category, and that, far from there being something more to show that it was appropriate that there should be jurisdiction, there was something less.
The respondent was not working for the appellants business at home, but was working in the operation of a German company and was dismissed by an employee who had his work base in Cairo.
In the Extra Division Lord Osborne said in para 15 that he took from Lord Hoffmanns reference to an employee who works and is based abroad when dealing with what he termed expatriate employees that he meant someone whose place of work and base, which included his place of residence, was situated in a foreign country.
Referring to the passage in para 40 of Lord Hoffmanns speech, where he said that he could not think of any other examples of expatriate employees to whom section 94(1) might apply but that they would have to have equally strong connections with Great Britain and with British employment law (see para 12, above), he said: Since, in my view, the respondent cannot properly be seen as an expatriate employee, this particular observation is not of direct relevance to his situation.
However, I consider that what is said comes, perhaps, as close as anything in this judgment to an indication of the kind of connection with Great Britain and British employment law that an employee would require to show to be able to invoke successfully the jurisdiction of an employment tribunal in connection with a claim based upon section 94(1).
Thus, the reference to strong connections with Great Britain and British employment law seems to me to be important.
In para 16 of his opinion Lord Osborne said that it was not necessary for a claimant to demonstrate that he might properly be placed in one of the categories considered in detail by Lord Hoffmann.
An employee might have a place of work in a foreign country but carry it out in a manner and in circumstances in which he could not properly be described as peripatetic or expatriate.
In para 19 he said that it was not possible, without qualification, to affirm the decision of the employment tribunal as words used by the chairman suggested that he considered that the task that he was undertaking was the exercise of a discretion.
Lord Hoffmann had made it clear in para 24 of his speech in Lawson that it was a question of law, although involving judgment in the application of the law to the facts.
But Lord Osborne concluded in para 20 that the tribunal ultimately reached a correct conclusion on the facts.
Lord Carloway said in para 27 that, as he read Lord Hoffmanns speech, he was setting out three definitive categories of employment, into which every person is capable of being squeezed.
In para 29 he said that an expatriate employee is one who lives and works abroad.
That did not apply to the respondent, who had his home in England.
In para 30 he indicated that he saw the respondent as more peripatetic than expatriate, as these words were used by Lord Hoffmann.
But he went on to ask himself a broader question.
This was whether, notwithstanding the foreign elements, Parliament intended section 94(1) to apply to someone in the respondents circumstances whose employer did not regard him as an expatriate but as a commuter and dealt with all his contractual entitlements in Dyce.
He answered that question in the affirmative.
Lord Brodie, who dissented, said in paras 54 55 that in his opinion there was no question but that the respondent fell into Lord Hoffmanns expatriate employee category, that living arrangements did not comprise a necessary element in any of them and that he did not see the respondent as falling within the exceptional cases of persons working abroad that he had identified.
Discussion
I have set out the reasoning in the judgments below at some length because it shows that, as Mr Christie observed in para 38 of his judgment in the employment tribunal, Lord Hoffmanns analysis in Lawson did not have the effect of eliminating uncertainty and that those who have been looking to it for guidance have found it difficult to apply.
Mr Christies complaint was that it seemed to remain a very open question as to what exactly amounts to a sufficient or sufficiently substantial connection with Great Britain, and that there was little by way of guidance which employment tribunals might grasp to assist in what test they are to apply or how to go about their task.
Lady Hales comment in Duncombe, para 8, that there is no hard and fast rule and that it is a mistake to try and torture the circumstances of one employment to make it fit one of the examples given, for they are merely examples of the application of the general principle, will have gone a long way to address this problem.
But Mr Cavanagh QC for the appellant described this case as much more mainstream because it will cover a much larger class of employees than any one of Lord Hoffmanns categories.
The problem that it raises must be resolved by applying the relevant guiding principles to the facts described in the employment tribunals judgment.
As I have already indicated (see para 14, above), it is possible on a careful reading of Lord Hoffmanns speech in Lawson to find what he saw as the guiding principles.
The question in each case is whether section 94(1) applies to the particular case, notwithstanding its foreign elements.
Parliament cannot be taken to have intended to confer rights on employees having no connection with Great Britain at all.
The paradigm case for the application of the subsection is, of course, the employee who was working in Great Britain.
But there is some scope for a wider interpretation, as the language of section 94(1) does not confine its application to employment in Great Britain.
The constraints imposed by the previous legislation, by which it was declared that the right not to be unfairly dismissed did not apply to any employment where under his contract of employment the employee ordinarily worked outside Great Britain, have been removed.
It is not for the courts to lay down a series of fixed rules where Parliament has decided, when consolidating with amendments the previous legislation, not to do so.
They have a different task.
It is to give effect to what Parliament may reasonably be taken to have intended by identifying, and applying, the relevant principles.
Mr Cavanagh drew attention to Lord Hoffmanns comment in Lawson, para 37, that the fact that the relationship was rooted and forged in Great Britain because the respondent happened to be British and he was recruited in Great Britain by a British company ought not to be sufficient in itself to take the case out of the general rule.
Those factors will never be unimportant, but I agree that the starting point needs to be more precisely identified.
It is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works.
The general rule is that the place of employment is decisive.
But it is not an absolute rule.
The open ended language of section 94(1) leaves room for some exceptions where the connection with Great Britain is sufficiently strong to show that this can be justified.
The case of the peripatetic employee who was based in Great Britain is one example.
The expatriate employee, all of whose services were performed abroad but who had nevertheless very close connections with Great Britain because of the nature and circumstances of employment, is another.
The reason why an exception can be made in those cases is that the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that section 94(1) should apply to them.
The expatriate cases that Lord Hoffmann identified as falling within its scope were referred to by him as exceptional cases: para 36.
This was because, as he said in para 36, the circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation.
It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of employment is decisive.
The case of those who are truly expatriate because they not only work but also live outside Great Britain requires an especially strong connection with Great Britain and British employment law before an exception can be made for them.
But it does not follow that the connection that must be shown in the case of those who are not truly expatriate, because they were not both working and living overseas, must achieve the high standard that would enable one to say that their case was exceptional.
The question whether, on given facts, a case falls within the scope of section 94(1) is a question of law, but it is also a question of degree.
The fact that the commuter has his home in Great Britain, with all the consequences that flow from this for the terms and conditions of his employment, makes the burden in his case of showing that there was a sufficient connection less onerous.
Mr Cavanagh said that a rigorous standard should be applied, but I would not express the test in those terms.
The question of law is whether section 94 (1) applies to this particular employment.
The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain.
The respondent's case
It is true that at the time of his dismissal the respondent was working in Libya and that the operations that were being conducted there and in which he worked were those of a different Halliburton associated company which was incorporated and based in Germany.
It is true also that the decision to dismiss him was taken by Mr Strachan who was based in Cairo.
But I would not attach as much importance to these details as I would have done if the company for which the respondent was working in Libya was not another associated Halliburton company.
The vehicles which a multinational corporation uses to conduct its business across international boundaries depend on a variety of factors which may deflect attention from the reality of the situation in which the employee finds himself.
As Mr Christie said in the employment tribunal, it is notorious that the employees of one company within the group may waft to another without alteration to their essential function in pursuit of the common corporate purpose: para 53.
All the other factors point towards Great Britain as the place with which, in comparison with any other, the respondents employment had the closer connection.
The appellants business was based in Great Britain.
It was to provide tools, services and personnel to the oil industry.
That was why it sent the respondent to Libya, even though the actual work itself was in the furtherance of the business of another Halliburton subsidiary or associate company: see the employment tribunals judgment, para 53.
It chose to treat him as a commuter for this purpose, with a rotational working pattern familiar to workers elsewhere in the oil industry which enables them to spend an equivalent amount of time at home in Great Britain as that spent offshore or overseas.
In the respondents case this meant that all the benefits for which he would have been eligible had he been working in Great Britain were preserved for him.
Lady Smith said in the EAT that the employment tribunal was wrong to take account of the proper law of the parties contract and the reassurance given to the respondent by the appellant about the availability to him of UK employment law, as neither of them were relevant.
The better view, I think, is that, while neither of these things can be regarded as determinative, they are nevertheless relevant.
Of course, it was not open to the parties to contract in to the jurisdiction of the employment tribunal.
As Mr Cavanagh put it, the parties cannot alter the statutory reach of section 94(1) by an estoppel based on what they agreed to.
The question whether the tribunal has jurisdiction will always depend on whether it can be held that Parliament can reasonably be taken to have intended that an employee in the claimants position should have the right to take his claim to an employment tribunal.
But, as this is a question of fact and degree, factors such as any assurance that the employer may have given to the employee and the way the employment relationship is then handled in practice must play a part in the assessment.
The assurances that were given in the respondents case were made in response to his understandable concern that his position under British employment law might be compromised by his assignment to Libya.
The documentation he was given indicated that it was the appellants intention that the relationship should be governed by British employment law.
This was borne out in practice, as matters relating to the termination of his employment were handled by the appellants human resources department in Aberdeen.
This all fits into a pattern, which points quite strongly to British employment law as the system with which his employment had the closest connection.
Mr Cavanagh submitted that the fact that the respondents home was in Great Britain was of no relevance.
Why, he said, should the place where you are living when you are not working be relevant at all? All that mattered was the place where he was working.
His place of residence did not matter, and it should be left out of account.
It is true that his place of work was in Libya and not in Preston.
But the fact that his home was in Great Britain cannot be dismissed as irrelevant.
It was the reason why he was given the status of a commuter, with all the benefits that were attached to it which, as he made clear, he did not want to be prejudiced by his assignment.
Here too the fact that his home was in Preston fits in to a pattern which had a very real bearing on the parties employment relationship.
As the question is ultimately one of degree, considerable respect must be given to the decision of the employment tribunal as the primary fact finder.
Mr Christie said in para 54 of his judgment that his conclusion that the balance was in favour of the respondent fell within the band of reasonable responses available to a reasonable chairman of employment tribunals.
This remark was seen by both Lady Smith in para 36 of her judgment in the EAT and by Lord Osborne in the Extra Division, 2011 SLT 44, para 19 as an indication that he considered the task that he was undertaking as the exercise of a discretion.
His remark was perhaps not very well chosen, but I do not think that his judgment when read as a whole is open to this criticism.
The test which he applied was whether there was a substantial connection with Great Britain: see paras 39 and 47.
It would have been better if he had asked himself whether the connection was sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for the tribunal to deal with the claim: see para 29, above.
But I think that it is plain from his reasoning that he would have reached the same conclusion if he had applied that test.
Lord Osborne said in para 20 of his opinion that the tribunal reached a conclusion that it was entitled to reach and that it was a correct conclusion.
I agree with that assessment.
So I too would hold that section 94(1) must be interpreted as applying to the respondents employment, and that the employment tribunal has jurisdiction to hear his claim.
Conclusion
I would dismiss the appeal.
I would also affirm the Extra Divisions
interlocutor, the effect of which is that the case will be remitted to the employment tribunal to deal with the merits of the respondents claim that he was dismissed unfairly.

summary:
The issue in this case is whether an employment tribunal has jurisdiction in relation to individuals who are resident in Great Britain and employed by a British company but who travel to and from home to work overseas.
The Appellant is a UK company based near Aberdeen, which is one of about 70 subsidiary or associated companies of Halliburton Inc., a US corporation.
It supplies tools, services and personnel to the oil industry.
Mr Ravat lives in Preston, Lancashire, and is a British citizen.
He was employed by the Appellant from April 1990 until May 2006, when he was made redundant.
He complains that he was unfairly dismissed.
At the time of his dismissal he was working in Libya.
The question is whether the employment tribunal has jurisdiction to consider his complaint.
Mr Ravats employment documentation described him as a UK commuter.
He worked for 28 consecutive days in Libya, followed by 28 consecutive days off at home in Preston.
He was job sharing, working back to back with another employee.
Some of the Appellants employees were accorded expatriate status, but that was not done in Mr Ravats case because he did not live abroad full time.
His travel costs were paid for by the Appellant.
The work that Mr Ravat carried out in Libya was for the benefit of a German associated company of Halliburton Inc. His salary was paid in Sterling to a UK bank account, and he paid income tax and national insurance on the PAYE basis.
An employment tribunal sitting in Aberdeen held that it did have jurisdiction.
That decision was set aside by the Employment Appeal Tribunal.
Mr Ravat appealed, and the Inner House of the Court of Session allowed the appeal.
The Appellant now appeals to the Supreme Court.
The Supreme Court unanimously dismisses the appeal and remits the case to the employment tribunal to deal with the merits of the respondents claim that he was dismissed unfairly.
The judgment is given by Lord Hope.
Section 94(1) of the Employment Rights Act 1996 sets out the right of the employee not to be unfairly dismissed and section 230(1) sets out the definition of employee.
They do not contain any geographical limitation, nor is any such limitation to be found anywhere else in the Act [3].
Yet it is plain that some limitation must be implied: section 94(1) cannot apply to all employment anywhere in the world [4].
In Lawson v Serco Ltd [2006] UKHL 3, Lord Hoffmann identified three categories of employees who would fall within the jurisdiction of the employment tribunal: employees working in Great Britain; peripatetic employees where the employee is based in Great Britain; and, in some exceptional cases, expatriate employees [9 12].
But it would be difficult to fit Mr Ravats case into any of Lord
Hoffmanns categories [13].
The problem that it raises must be resolved by applying the relevant guiding principles to the facts described in the employment tribunals judgment [25].
The question in each case is whether section 94(1) applied to the particular case, notwithstanding its foreign elements.
It is not for the courts to lay down a series of fixed rules where Parliament has decided not to do so.
Their role is rather to give effect to what Parliament may reasonably be taken to have intended by identifying and applying the relevant principles [26].
The starting point is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works.
The general rule is that the place of employment is decisive, but that is not an absolute rule [27].
In some cases, an exception can be made because the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that section 94(1) should apply to them.
It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of employment is decisive.
The case of those who are truly expatriate because they not only work but also live outside Great Britain requires an especially strong connection with Great Britain and British employment law before an exception can be made for them [28].
But it does not follow that the connection that must be shown in the case of those who are not truly expatriate, because they are not both working and living overseas, must achieve the high standard that would enable one to say that their case was exceptional.
In this case, the fact that the commuter has his home in Great Britain, with all the consequences that flow from this for the terms and conditions of his employment, makes the burden in his case of showing that there was a sufficient connection less onerous.
The question of law is whether section 94(1) applies to this particular employment.
The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain [29].
In this case, Mr Ravat was working in Libya, for a different Halliburton associated company which was based in Germany, and the decision to dismiss him was taken by an individual based in Cairo.
But all the other factors point towards Great Britain as the place with which, in comparison with any other, Mr Ravats employment had the closer connection [30].
The Appellants business was based in Great Britain.
It treated Mr Ravat as a commuter, which meant that all the benefits for which he would have been eligible had he been working in Great Britain were preserved for him [31].
Although it was not open to the parties to contract in to the jurisdiction of the employment tribunal, factors such as any assurance that the employer may have given to the employee regarding the applicability of UK employment law, and the way the employment relationship is then handled in practice must play a part in the overall assessment [32].
On being assigned to Libya, Mr Ravat was assured that UK employment law would apply to his contract.
The documentation he received reflected this, and in fact matters relating to the termination of his employment were handled by the Appellants human resources department in Aberdeen [33 34].
As the question is ultimately one of degree, considerable respect must be given to the decision of the employment tribunal as the primary fact finder.
In the circumstances of this case, section 94(1) must be interpreted as applying to Mr Ravats employment, and the employment tribunal therefore has jurisdiction to hear his claim [35].


judgement:
The appeal raises a short issue of construction under the planning Acts, on which differing views have been expressed by experienced planning judges in the courts below.
It arises in the context of a planning permission granted by the respondent council for four blocks of student accommodation in proximity to a site used for storage of liquefied petroleum gas (LPG).
The question, as agreed by counsel for the purposes of the appeal, is: In considering under section 97 of the Town and Country Planning Act 1990 whether it appears to a local planning authority to be expedient to revoke or modify a permission to develop land, is it always open to that local planning authority to have regard to the compensation that it would or might have to pay under section 107? The Court of Appeal by a majority (Longmore and Sullivan LJJ, Pill LJ dissenting) [2011] PTSR 645 decided it in the affirmative.
Unusually, the court is asked to consider this question, not in the context of a specific decision of the council to revoke the permission, but as an abstract point of construction in connection with a decision which may or may not be made in the future.
As I understand it, the Court of Appeal has granted permission to appeal on the footing that the point is one of some general importance on which a definitive decision is desirable.
The parties
The Wolverhampton City Council (the council) is the council for a metropolitan borough in the West Midlands.
It is the local planning authority, and also the hazardous substances authority for the relevant area under the Planning (Hazardous Substances) Act 1990 (the PHSA 1990).
The Health & Safety Executive (the HSE) is a statutory non departmental public body, established under the Health and Safety at Work etc.
Act 1974.
It has a general duty under the Act to work with others to secure the health, safety and welfare of people at work, to protect the public against risks to health and safety arising from work activities, and to control dangerous substances.
The statutory regime for the control of hazards involving dangerous substances includes the Control of Major Accident Hazards Regulations 1999 (SI 1999/743) (made under European Council Directive 96/82/EC (the Council Directive)).
The HSE together with the Environment Agency is the competent authority under that regime, with responsibility to oversee its operation and to co ordinate the regulation of major hazards.
As part of that role, the HSE sets acceptable levels for particular classes of risk to the health and safety of the population, measured by the probability of a particular occurrence.
The HSE's advice in relation to particular development proposals is, in most cases, generated by a risk model known as Planning Advice for Developments near Hazardous Installations (PADHI).
There is a computer based version of this model, known as PADHI+, which allows local planning authorities to consult and obtain the HSE's advice online by entering various site specific details.
The distance between the hazardous installation and the proposed development is related to three zones (inner, middle and outer), the inner zone posing the greatest risk.
The interested party, Victoria Hall Ltd (the developer), is a private limited company whose main business is the provision of student accommodation, nationally and internationally.
It was represented by counsel in the Court of Appeal, but not in this court.
Statutory provisions
The grant of planning permission is governed by section 70 of the Town and Country Planning Act 1990 (the 1990 Act.) Where an application is made to the local planning authority, they may grant permission (conditionally or unconditionally) or refuse permission.
In dealing with the application they must have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations (s 70(2)).
Section 97, which is directly relevant to the appeal, provides: Power to revoke or modify planning permission "(1) If it appears to the local planning authority that it is expedient to revoke or modify any permission to develop land granted on an application made under this Part, the authority may by order revoke or modify the permission to such an extent as they consider expedient. (2) In exercising their functions under subsection (1) the authority shall have regard to the development plan and to any other material considerations.
In relation to building operations, the power to revoke or modify may be exercised at any time before the operations have been completed, but will not affect those operations so far as previously carried out (section 97(3)(4)).
If there are objections, a revocation order made by a local planning authority is subject to confirmation by the Secretary of State (section 98).
If the order is confirmed, compensation is payable by the authority for abortive expenditure, and for other loss or damage directly attributable to the revocation or modification (section 107).
Section 100 gives the Secretary of State a separate power to make an order under section 97.
Such an order has the same effect as one made by the local planning authority (section 100(2)), with the consequence (inter alia) that the authority, not the Secretary of State, are liable to pay compensation.
Although not directly relevant to this appeal, parallels have been drawn in argument with the provisions of section 102 (and related sections) for discontinuance orders, that is orders for the discontinuance of any use of land, or for the imposition of conditions on any such use.
Under section 102(1) a discontinuance order may be made, if: having regard to the development plan and to any other material considerations, it appears to a local planning authority that [such action] is expedient in the interests of the proper planning of their area (including the interests of amenity) .
Finally, reference should be made to the provisions for hazardous substances consent under the PHSA 1990.
By section 4, subject to certain limits, the presence of a hazardous substance on, over or under land requires a hazardous substances consent.
By section 9, consent may be granted by the hazardous substances authority.
In dealing with an application for consent, the authority is required to have regard to material considerations, which are defined as including in particular the existing and likely future uses of land in the vicinity, and the provisions of the development plan (s 9(2)).
By section 14 the same authority may make an order revoking or modifying such a consent, if it appears to them, having regard to any material considerations, that it is expedient to revoke or modify it.
By section 19, compensation is payable in respect of any loss or damage directly attributable to the revocation or modification.
Background facts
On 4 August 2008, following an application by the developer, the council granted planning permission for the erection of four blocks (blocks A D) of student accommodation on land between Culwell Street and Lock Street, Wolverhampton.
Some 95 metres away from the nearest block (Block D), on the other side of a railway line, there is a LPG facility operated by Carvers LPG (Wolverhampton) Ltd. (Carvers).
LPG is a dangerous substance within the meaning of the Council Directive.
The site accordingly requires, and has been granted, hazardous substances consent under the PHSA 1990.
Because of the proximity of the LPG site, the council was required to consult the HSE on the application.
They did so on line (by PADHI+) and received the following response: The assessment indicates that the risk of harm to people at the proposed Development is such that HSE'S advice is that there are sufficient reasons, on safety grounds, for advising against the granting of planning permission in this case.
This advice was in due course reported to the planning committee by the officers, with an indication that though not mandatory it should not be overridden without careful consideration.
What followed is summarised by Sullivan LJ (para 6): Despite this warning, when considering the planning application Wolverhampton failed to consult further with the HSE, failed to obtain its own advice as to the safety implications of permitting a substantial amount of residential accommodation in this location and, despite being obliged to do so, failed to give the HSE advance notice of its intention to grant planning permission for the development, and failed to notify the HSE that it had granted permission.
The HSE first discovered on 16 December 2008 that planning permission had been granted, over four months after the grant of permission and, since works had commenced prior to the grant of permission, five months after the works had commenced.
By the time the HSE became aware of the development, work on three of the blocks, A, B and C, was well advanced.
Work on block D, which was the closest block to the LPG facility, had not commenced.
Sullivan LJ also described the attempts which were made by the HSE over the following weeks to resolve the issue by agreement with the council and the other interested parties.
They indicated initially that their preferred option would be to relocate the Carvers installation.
But they also pointed out that the councils procedural failures had deprived the HSE of the opportunity to ask the Secretary of State to call in the application for planning permission; and they asked the council to remedy this by making a revocation order under section 97, at least to prevent the construction of block D.
The nature of the discussions between the council and the HSE can be seen from the notes of a meeting on 8 April 2009.
It was recorded that there was a verbal agreement that building of block D would not be started until market conditions improved.
The other blocks were almost complete, in preparation for the first students to take up residence at the beginning of the academic year in October 2009.
The HSE representative identified three options to resolve the problem: (i) revoke the planning permission for blocks in the inner and middle zones; (ii) move Carvers from their site; or (iii) reduce the LPG inventory at the Carvers Site and amend the hazardous substance consent to a lower level. (I take the word amend to be a reference to modification under section 14 of PHSA 1990.)
The councils representative indicated that no decision had yet been taken by the council on any of the options.
The first option (revocation) was considered most unlikely because of the potentially high costs of doing so.
It was noted that any of the options would require compensation, and that there would therefore need to be a dialogue between Carvers and Wolverhampton City Council on how best to achieve a positive outcome.
The HSE representative emphasised the need for a quick decision by the council, and offered technical support for that purpose.
He also advised that the HSE would consider further action, such as judicial review, if a satisfactory response were not received.
Thereafter progress was slow.
On 18 May the HSE restated its wish to resolve the issue urgently and asked the council to indicate whether it was willing to make a revocation order.
The councils reply was terse: The Council has now taken some preliminary legal advice and from a careful consideration of all the information available can see no justification for revoking or modifying the planning permission in question Apart from indicating that they were waiting for further information and would keep the HSE informed, they gave no further reasons for this decision, nor any clear indication of the councils view of the problem, or of how, if not by revocation, they proposed to deal with it.
On 22 June solicitors for the HSE gave the council notice of their intention to seek judicial review both of the grant of planning permission and of the decision not to revoke it.
They noted that no work had yet started on block D, which was entirely within the inner zone.
They suggested two courses open to the council: either to resolve on revocation of the permission in respect of block D, or to consent to the quashing of the permission as a whole.
The HSEs preference was for the latter, because it also had concerns about block C, and would welcome the opportunity to ensure that the whole development could be reconsidered.
In response the council indicated that, having taken leading counsels advice, and in view of the number of people living in the area, and the scope for further development, it was manifest that the most appropriate course is to relocate the installation, if need be compulsorily.
The council would be considering this further with its advisers.
It suggested that the HSE itself might wish to consider such a course.
The HSEs claim form was filed on 9 July.
On 14 October 2009 the matter came before Collins J on a rolled up hearing.
He granted permission to apply for judicial review, but declined to quash either the planning permission or the decision not to revoke.
Instead he ordered the council to provide a full summary of its reasons for granting planning permission and of the policies taken into account, and made a declaration that the council had acted in breach of the procedural regulations in a number of respects.
On the issue of revocation, he noted that this was now impossible in respect of blocks A, B and C, and would be in any event inappropriate because of its serious financial implications for the developer (a relevant factor, as held in Vasiliou v Secretary of State for Transport [1991] 2 All ER 77).
In respect of the HSEs submission that the cost of compensation was not a relevant factor (following Alnwick District Council v Secretary of State for the Environment, Transport and the Regions (2000) 79 P & CR 130), he said: I do not need to decide whether this is correct since the impact on the interested party coupled with the completion of three of the four blocks and the reasonable view that the HSE's failure to take immediate action shows that the risk could not be regarded as immediate entirely justifies a refusal to revoke or modify.
Certainly, the refusal cannot be regarded as irrational. (para 40)
The appeal was heard by the Court of Appeal in May 2010.
Judgment was given on 30 July.
Sullivan LJ, giving the leading judgment, noted (para 26) the HSEs argument that it had been seeking revocation only in respect of block D, and that in this respect Collins J had proceeded on a false premise.
Sullivan LJ thought that, whatever confusion there might have been about the HSEs own position until the letter of 22 June 2009, it should before then have become clear to the council that the only practical possibility was the revocation of block D; and that this was an option which they should have considered with care (paras 29 30).
Their failure to do so meant that their decision of 29 May 2009 not to make a revocation order was unlawful, and they should be ordered to reconsider (para 38).
On that point the court was unanimous.
As to whether compensation would be a material issue in that reconsideration (the issue now before this court), the Court of Appeal was divided.
Longmore LJ agreed with Sullivan LJ that it was capable in law of being a material factor, and ordered the council to reconsider the issue on that basis.
Pill LJ disagreed.
As already noted, they granted permission to appeal to this court.
I shall return to their reasoning below.
On the material before this court, the position remains that the council has not made a formal decision on whether to make a revocation order in respect of block D. We were told by Mr Griffiths QC on instructions that the council had obtained its own expert advice as to the degree of risk posed by the proximity of the LPG business, and he also gave us some information about the progress of discussions for the relocation of the Carvers business to another site owned by the council.
However, since that information is not in evidence, and the HSE has not had an opportunity to respond to it, I leave it out of account for the purposes of this judgment.
A simple view
I start by looking at the position in general terms, before considering whether there is anything in the particular statute, or the relevant authorities, which requires a different approach.
In simple terms, the question is whether a public authority, when deciding whether to exercise a discretionary power to achieve a public objective, is entitled to take into account the cost to the public of so doing.
Posed in that way, the question answers itself.
As custodian of public funds, the authority not only may, but generally must, have regard to the cost to the public of its actions, at least to the extent of considering in any case whether the cost is proportionate to the aim to be achieved, and taking account of any more economic ways of achieving the same objective.
Of course, the weight attributable to cost considerations will vary with the context.
Where, for example, the authority is faced with an imminent threat to public security within its sphere of responsibility, cost could rarely be a valid reason for doing nothing, but could well be relevant to the choice between effective alternatives.
So much is not only sound administrative practice, but common sense.
Does section 97 require a different approach? On an ordinary reading, the answer must be no.
The section requires the authority to satisfy itself that revocation is expedient, and in so doing to have regard to the development plan and other material considerations.
It is not suggested in this case that the development plan throws any light on this issue.
The other two expressions are, at least at first sight, capable of encompassing the cost consequences of revocation.
The word expedient implies no more than that the action should be appropriate in all the circumstances.
Where one of those circumstances is a potential liability for compensation, it is hard to see why it should be excluded.
Similarly, at least at first sight, there is nothing in the expression material considerations to exclude cost.
Material in ordinary language is the same as relevant.
Where the exercise of the power, in the manner envisaged by the statute, will have both planning and financial consequences, there is no obvious reason to treat either as irrelevant.
The practical sense of this approach is illustrated by the facts of the present case.
The safety concerns highlighted by the HSE would have made it hard for the council to justify doing nothing, at least once there was a risk of block D being built.
But, assuming the need for compulsion, it appears that they had a choice of at least three statutory routes: an order under section 97 of the 1990 Act to prevent the building of block D, an order under section 14 of the PHSA to limit the hazardous substances which could be stored at the LPG site, or a compulsory purchase order to remove the Carvers installation altogether.
Action under any of these powers would result in a claim for compensation, but not necessarily of the same order.
The choice between the options would no doubt involve a range of planning and other issues, but it would be curious if comparative cost could not be at least one factor in the overall balance.
Authorities
The principal authority relied for the contrary view, which had the support of Pill LJ in the present case, is the judgment of Richards J in the Alnwick District Council case 79 P & CR 130.
The district council had granted permission for a large superstore, under a misapprehension as to the size of what was proposed, and in contravention (as the inspector found) of national planning policy.
In the face of the councils objections, the Secretary of State made a revocation order, the compensation for which (estimated at 3 4m) would fall on the council.
The inspector described the decision as grossly wrong and seriously perverse, and likely to cause significant harm to Alnwicks vitality and viability as a shopping centre.
He indicated that he regarded the issue of compensation as irrelevant.
The Secretary of State adopted his reasoning.
The council applied to the High Court to quash the order.
The principal argument was that liability for compensation of this order would put the council in severe financial difficulties, and in particular would put at risk a planned development of leisure facilities elsewhere in the district.
This argument had been touched on only lightly at the inquiry, and seems to have been developed largely by counsel in the High Court.
The Secretary of State submitted that compensation was irrelevant as a matter of law, but also that, even if it had been relevant, relief should be refused as a matter of discretion, because on the material before the Secretary of State there was no likelihood of it having led to a different decision.
Richards J accepted both submissions.
The second, which is not in dispute, is sufficient to support the decision in the case.
On the first, in view of the importance attached to his reasoning by the appellants, I will quote most of the relevant passage, at pp 142 143, in full: A decision maker will often be entitled, if not required, to take into account as a relevant or material consideration the financial consequences of his decision.
Consideration of the effects of a decision on others is a normal aspect of the decision making function and there is no difference of principle between financial effects and other effects.
The observations of Nicholls LJ, in Vasiliou v Secretary of State for Transport [1991] 2 All ER 77 as to the relevance of the adverse effects of a ministerial order were directed to the specific context of an order extinguishing or expropriating an individual's rights but are in my view capable of more general application.
Nor is the point limited to the effects of a decision on others.
It also applies to the financial consequences for the decision maker himself.
Where decisions involve the expenditure of public funds, the decision maker will normally be entitled or required to take into account matters such as the availability of funds and competing demands on those funds.
All that, however, is at a level of generality.
Whether a particular consideration is one that a decision maker is entitled or required to take into account in the exercise of a statutory power depends ultimately on the statute conferring that power.
A statute may restrict the range of permissible considerations either expressly or by implication.
Whether it does so is to be determined by reference to its provisions and to the statutory purpose.
In the exercise of their functions under sections 97 and 100 of the 1990 Act with regard to the revocation and modification of planning permissions, local planning authorities and the Secretary of State are required to have regard to "material considerations" (see section 97(2)).
What is capable of amounting to a material consideration for this purpose must in my view be the same as in relation to the initial determination of planning applications, i.e. the material considerations referred to in sections 70(2) and 54A.
Although the courts have adopted a flexible approach towards the concept, a consideration must in broad terms be a planning consideration in order to be material for that purpose.
Any consideration which relates to the use and development of land is capable of being a planning consideration (see Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281, 1294).
It follows that financial consequences are capable of amounting to a material consideration in so far as they relate to the use and development of land.
R v Westminster City Council, Ex p Monahan [1990] 1 QB 87 is an example.
The need for a connection with the use and development of land was helpfully spelled out in the application of that decision in Northumberland County Council v Secretary of State for the Environment (1989) 59 P & CR 468.
It also follows, however, that in so far as financial consequences do not relate to the use and development of land, they are not capable of amounting to material considerations.
In my view that is fatal to the general proposition for which [leading counsel on behalf of the council] contends, that the cost to the local authority may be taken into account irrespective of land use consequences.
I see no warrant for treating cost as a permissible consideration even where it is not a material consideration within the meaning of the legislation.
It is wholly consonant with the statutory purpose that decisions under sections 97 and 100 should be guided only by planning considerations.
It cannot have been the legislative intention, in introducing provision for the payment of compensation, that the impact of such payment upon a local planning authority's financial position should condition the exercise of the powers to revoke or modify planning permissions.
Payment of compensation enters into the picture only after a decision to revoke or modify has been taken.
Its purpose is simply to ensure that persons interested in the land are compensated for any loss they suffer by reason of the revocation or modification of the permission. (Emphasis added)
It is to be noted that Richards J accepted as a general proposition that, where a decision involves the expenditure of public funds, the decision maker will normally be entitled or required to take into account matters such as the availability of funds and competing demands on those funds.
His reasoning for taking a different view in the present context depended (as seen in the emphasised passages) on three steps: i) The meaning of the term material considerations must be consistent throughout the Act, including as between section 70 and section 97. ii) The authorities show that financial considerations unrelated to the use and development of land are not material in relation to the grant or refusal of planning permission.
They cannot therefore be material in relation to the making of a revocation order. iii) Under the statutory scheme compensation enters the picture only after the order has been made.
I say at once that I find the third point very difficult to follow.
The fact that a restaurant bill normally arrives after the meal does not mean that the likely cost of the meal has to be ignored in deciding where and what to eat.
Similarly, potential liability to compensation cannot be said to be irrelevant merely because it is not fixed and payable at the outset.
I will return to the other points when considering the appellants arguments in this court.
It is necessary first to refer to the other main first instance authority, and the judgments of the Court of Appeal in the present case.
In R (Usk Valley Conservation Group) v Brecon Beacons National Park Authority [2010] 2 P & CR 198 (relating to a discontinuance order under section 102), Ouseley J disagreed with Richards Js interpretation.
He was willing to accept step (i) of the argument, that the term material considerations required a consistent interpretation, which limited it to planning considerations (para 202); but he thought that the concept of expediency implied a wider approach: 198.
An expedient decision would, to my mind, necessarily require attention to be paid to the advantages and disadvantages of taking one or other or none of the available steps under section 102.
These advantages and disadvantages should not be confined to those which the subject of the notice would face; they should be measured against the advantages and disadvantages to the public interest at large, including the costs and effectiveness of the various possibilities.
The question of whether the cost to the public is worth the gain to the public is, I would have thought, the obvious way of testing expediency.
At least, it is difficult to see that expediency could be tested without consideration of that factor.
In the Court of Appeal in the present case, Sullivan LJ thought that the introduction of the word expedient was not of itself sufficient to justify a different approach as between section 70 and section 97 (para 47).
He also accepted (para 46) that there must be a consistent approach to the meaning of material considerations in the enactments which comprise the planning code, a term which he treated as including the provisions both for the grant of permission (section 70), and those for revocation (section 97) and discontinuance (section 102) (para 45).
However, as I understand his reasoning, he saw the two expressions as working together.
First, he highlighted the different decision making process as between section 70 on the one hand, and sections 97 and 102 on the other.
The authority does not initiate the decision making process under section 70, and a decision to take no action is not an option: para 49.
By contrast, under section 97 or 102, the authority initiates the decision making process, and, having done so, may decide to take no action because it considers it not expedient to do so.
In that process it needs to consider the consequences under the Act, and whether action under some other provision would be more appropriate.
He continued: The 1990 Act must be read as a whole for the purpose of ascertaining Parliaments intention.
Since Parliament expressly provided that the local planning authorities will be liable to pay compensation if they decide that action should be taken under certain powers conferred by the Act, it must be inferred, in the absence of clear words to the contrary, that Parliament expected that a local planning authority would have regard to its liability to pay compensation under one part of the Act when deciding whether or not to exercise a power under another part of the Act.
A decision under section 97 is not taken in isolation, it is taken within the statutory framework of the 1990 Act.
If that statutory framework imposes a liability to pay compensation if a certain course of action is taken, there is no sensible reason why that liability should be ignored (in the absence of an express instruction to do so) when a decision is reached under the Act as to whether that action should be taken. (para 50)
Longmore LJ agreed with Sullivan LJ, partly because of the differences between section 70 and section 97, but also because he considered brightline rules to be much more troublesome in public law than in private law: The view that the fact and the amount of compensation can never be taken into account by a planning authority has, to my mind, an inappropriately absolute ring to it.
A private pocket may be required to pay up although the heavens fall around it, but such a principle can be awkward where the public purse is involved and public authorities have budgets within the limits of which they must, if possible, keep. (para 66)
He added that a planning authority would not be entitled to refuse to modify or revoke a planning permission by invoking a vague concept of cost to the public purse: They would have to say in terms what the amount of compensation is likely to be and precisely why it is expedient for that sum not to be paid in circumstances in which modification or revocation might otherwise be appropriate.
That is unlikely to be an easy or straightforward exercise. (para 67)
Pill LJ took a different view: I agree with Richards J in the Alnwick case that what is capable of amounting to a material consideration for the purposes of section 97 must be the same as in relation to the determination of planning applications under section 70.
Its use in a context in which compensation may follow from a decision does not affect what is comprehended by the term "material considerations", which are planning considerations related to the character, use or development of the land. (para 76)
He noted, but was unimpressed by, the argument (reflected in the judgment of Sullivan LJ at para 53) that, when the original version of section 102 was enacted in 1947, Parliament cannot have intended financial considerations to be ignored, since that would have led to a spate of expensive discontinuance orders to put right the legacy of numerous inappropriately sited uses and buildings: I do not accept that analysis.
The consistent theme in the legislation has been that planning decisions should be made in accordance with the development plan and any other material considerations.
The 1947 Act introduced the concept of the development plan which became the primary planning document for the local planning authority's area.
A good environment and development were to be achieved by means of a development plan, or a series of development plans.
It was not contemplated in 1947 that England (and Wales) would be transformed overnight into Blake's Jerusalem.
The route to progress was through the new development plans and not through extensive use of discontinuance orders. (para 87)
The introduction of the word expedient made no difference: The word expedient must be read in context: is it expedient having regard to the development plan and to any other material considerations? The word permits latitude in an evaluation but the evaluation must be based on matters lawfully taken into account, in my view considerations relating to the character, use or development of the land. (para 91)
From a practical point of view, he saw a risk that, if undue weight were given to financial considerations, the careful procedures normally followed to ensure that decisions inappropriate on planning grounds are not taken will operate less effectively, and a deterrent to facile decision making would be removed. (para 107)
The appellants arguments
Mr Coppel QC, for the HSE, has helpfully grouped his submissions under four main heads:
(1) Consistency
In his printed case, Mr Coppel went to some lengths to counter the various elements in Ouseley Js detailed reasoning in Usk.
However, the key points, and those most directly relevant to the majoritys reasoning in this case, can I think be summarised as follows: i) There is a presumption that words are used with a consistent meaning throughout a statute.
There is no good reason to depart from that presumption in this case. ii) The meaning of the phrase material considerations in the planning Acts is well established.
It does not include financial considerations, except where they have planning consequences. iii) Consistent with that principle, it is axiomatic that a planning permission cannot be bought and sold. iv) The majority were right to accept in principle that the expression material considerations should be given the same meaning throughout the planning code. v) They were wrong to hold in respect of section 97 that either the nature of the decision making process, or the inclusion of the concept of expediency, altered the range of factors to be taken into account.
That term gave the decision maker a wide latitude when evaluating the development plan and . other material considerations; but it did not widen the range of matters to which the authority could properly have regard when carrying out that evaluation.
(2) Effective judicial supervision
The majoritys interpretation would deprive the court of any effective power to control the exercise of the discretion under section 97.
The word expedient has been interpreted as giving the decision maker a wide latitude, which allows little room for intervention by the courts.
Further, the courts are reluctant to interfere with decisions involving allocation of limited resources, or to substitute their own views of relative priorities.
If material considerations include the financial impact on the authority, a case for revocation, however compelling on planning grounds, could lawfully be overridden by other demands on limited resources.
The authoritys functions under the planning Acts, including those relating to hazardous substances, should not capable of being traded against its other functions.
(3) Self interest
The corollary of the proposition that a planning permission cannot be bought or sold is that the decision to revoke or modify a permission cannot be devalued by consideration of its cost to the authority.
This lessens the independence of the local planning authority, and is alien to the integrity of the planning system.
The authority should not be tempted to deviate from the best planning decision by financial self interest.
(4) The importance of the development plan
Mr Coppel echoes Pill LJ (para 87) in emphasising the consistent theme of the legislation, that planning decisions should start from the development plan.
If material considerations extend to non planning considerations, the importance of the development plan is weakened, and its paramountcy cannot be secured against the wildcard of financial considerations (printed case, paragraph 78).
Discussion
In considering these arguments, and the reasoning of the courts below, I hope I will be forgiven for going back to the simple approach with which I started.
As I said then, and as Richards J accepted, general principles would normally dictate that a public authority should take into account the financial consequences for the public purse of its decisions.
I also said that, at least at first sight, I could find nothing in section 97 which requires it to be treated as an exception to those principles.
Nothing I have heard or read in this case has led me to change that view.
The principal argument to the opposite effect is the appeal to consistency.
I accept of course the ordinary presumption that Parliament is taken as using the same words in the same sense.
I am aware also that in planning law the apparently innocent expression material considerations has acquired an impressive overburden of case law going back more than 40 years.
However, none of the authorities before Alnwick were directed to the provisions related to revocation or discontinuance.
Sufficient consistency is given to the expression if the word material considerations is treated as it is elsewhere in administrative law: that is, as meaning considerations material (or relevant) to the exercise of the particular power, in its statutory context and for the purposes for which it was granted.
So read, the Court of Appeals interpretation creates no inconsistency between section 70 and section 97.
The meaning is the same, but the statutory context is different.
Under section 70 the planning authority has a duty to act, and it has a limited choice.
It must either grant or refuse permission.
Its decision must be governed by considerations material to that limited choice.
Further, the decision normally has no direct cost consequences for the authority (unless exceptionally it has a direct financial interest in the development, when other constraints come into play).
Under section 97, by contrast, the authority has no obligation to do anything at all; it has a discretion whether to act, and if so how.
Secondly, if it does decide to act, it must bear the financial consequences, in the form of compensation.
No doubt under section 70, planning permission cannot be bought or sold.
But section 97 creates a specific statutory power to buy back a permission previously granted.
Cost, or value for money, is naturally relevant to the purchasers consideration.
To speak of the self interest of the authority in this context is unhelpful.
A public authority has no self interest distinct from that of the public which it serves.
The same result can be achieved even on a narrower interpretation of the expression material considerations.
In other words, planning considerations, including the development plan, are the starting point.
Thus the primacy of the plan, if it has anything relevant to say on the issue, is not in doubt, but it may need to give way to other factors, including practicalities.
A decision to act under section 97 must be motivated by planning considerations, and directed to a planning objective.
But the converse does not follow.
Inaction is also an option.
In exercising its choice not to act under section 97, or in choosing between that and other means of achieving its planning objective, the authority is to be guided by what is expedient.
No principle of consistency requires that process to be confined to planning considerations, or to exclude cost.
This approach to the section does not exclude effective judicial supervision when necessary.
It is true that the word expedient normally implies a wide discretion reviewable only on conventional public law grounds.
However, as already noted, its scope in practice depends on the circumstances.
A public authority, faced with a serious threat to public safety within its sphere of responsibility, would find it difficult to defend the rationality of a refusal to act, if the only reason were other demands on its budget.
In any event, the Act contains its own remedy.
If the authority fails to act, the Secretary of State may be asked to make a revocation order (as happened in Alnwick), leaving the planning authority to pick up the bill.
I see no reason to doubt Richards Js actual conclusion in Alnwick.
On the facts and arguments as presented to the Secretary of State, it is difficult to see how his decision could have been different.
However, Richards J, with respect, took too narrow a view of the law.
Had there been more substantial evidence that the order would leave the authority in serious financial difficulties, I see no reason why the Secretary of State should have been obliged to leave it out of account, at least to the extent of considering whether a financial contribution might have been available from central or other sources.
Finally I should comment briefly on the point made at the end of Longmore LJs judgment.
I agree with his instinctive reaction against brightline rules governing the exercise of discretionary powers in public law.
I have more difficulty with his comment on the level of precision required to justify refusal to make an order.
Mr Coppel made a similar point, suggesting that authorities might find it difficult in practice to arrive at a clear estimate of the likely level of compensation, particularly in the absence of co operation from the landowner.
I do not see these as practical issues.
It is not possible in the abstract to say what kind of information, or what degree of precision, may be required by, or available to, the authority when making a decision of this kind.
It will depend on the circumstances.
That is neither unusual nor a cause for concern.
The same issues may arise, for example, whenever an authority is considering a major compulsory purchase project.
It will need at the planning stage to form a general view of the overall cost, including the cost of compensation, and of the resources available to meet it.
Initially, this view will need to be based largely on the advice and estimates of its expert advisers, the precision and certainty of which will depend on the timing and subject matter.
That uncertainty is not a reason for not conducting the exercise, still less for leaving cost considerations out of account altogether.
Conclusion
For these reasons, which essentially follow those of the majority of the Court of Appeal, I would dismiss the appeal.

dataset_name: UK-Abs

summary:
Wolverhampton City Council (the Council), in its capacity as the local planning authority, granted planning permission for four blocks of student accommodation in proximity to a site used for storage of liquefied petroleum gas (LPG).
Three of the four blocks of student accommodation had been completed, but work on the fourth had not commenced.
Concerned that the LPG storage facility in the vicinity constituted a danger to human life, the Health and Safety Executive (the HSE), a statutory, non departmental public body, applied for an order to revoke or modify the planning permission under section 97 of the Town and Country Planning Act 1990 (the Act).
In refusing the application, the Council took into account its liability to pay compensation under section 107 of the Act were it to revoke planning permission in respect of all four blocks, but it did not consider whether the application should be granted only in respect of the fourth block.
The HSE brought judicial review proceedings challenging, among other things, the Councils decision not to revoke or modify the planning permission.
The High Court refused that part of the claim.
The Court of Appeal allowed the HSEs appeal, holding that it was irrational for the Council to fail to consider whether to exercise its powers under section 97 so as to prevent the construction of the fourth block alone.
The Councils decision was therefore unlawful and it was ordered to reconsider the matter.
However, the Court of Appeal held by a majority (Pill LJ dissenting) that a decision under section 97 of the Act was to be taken not in isolation but within the statutory framework of the Act which imposed a liability to pay compensation if an order was made under the section.
Accordingly, the Council, when reconsidering the matter, would be entitled to take into account its liability to pay compensation under section 107 of the Act.
The HSE appealed to the Supreme Court against this part of the decision of the Court of Appeal: the issue being whether it is always open to a local planning authority, in considering under section 97 of the Act whether it appears to be expedient to revoke or modify a permission to develop land, to have regard to the compensation that it would or might have to pay under section 107.
The Supreme Court unanimously dismisses the HSEs appeal.
Lord Carnwath gives the leading judgment of the Court with which all other Justices agree.
In simple terms, the question is whether a public authority, when deciding whether to exercise a discretionary power to achieve a public objective, is entitled to take into account the cost to the public of so doing.
As custodian of public funds, the authority not only may, but generally must, have regard to the cost to the public of its actions, at least to the extent of considering in any case whether the cost is proportionate to the aim to be achieved, and taking account of any more economic ways of achieving the same objective [24] [25].
Section 97 of the Act requires no different approach.
The section requires the authority to satisfy itself that revocation is expedient, and in so doing to have regard to the development plan and other material considerations.
The development plan throws no light on the issue in this case.
The word expedient implies no more than that the action should be appropriate in all the circumstances.
Where one of those circumstances is a potential liability for compensation, it is hard to see why it should be excluded.
Material in ordinary language is the same as relevant.
Where the exercise of the power, in the manner envisaged by the statute, will have both planning and financial consequences, there is no obvious reason to treat either as irrelevant [26].
Under section 97, a planning authority has a discretion whether to act, and, if so, how.
If it does decide to act, it must bear the financial consequences.
Section 97 creates a specific statutory power to buy back a permission previously granted.
Cost, or value for money, is naturally relevant to the purchasers consideration [51].
Sufficient consistency is given to the expression material considerations if it is treated as it is elsewhere in administrative law: that is, as meaning considerations material (or relevant) to the exercise of the particular power, in its statutory context and for the purposes for which it was granted.
So read, there is no inconsistency between section 97 and other sections such as section 70 [49] [50].
Furthermore, in exercising its choice not to act under section 97, or in choosing between that and other means of achieving its planning objective, the authority is to be guided by what is expedient.
No principle of consistency requires that process to be confined to planning considerations, or to exclude cost [52].
The contrary view of Richards J in Alnwick DC v Secretary of State (2000) 79 P & CR 130 was wrong, although the actual decision may be supportable on its own facts [54].
Possible difficulty in assessing precisely the likely level of compensation is no reason for not conducting the exercise, still less for leaving cost considerations out of account altogether [55] [56].
Accordingly, for reasons which essentially follow those of the majority of the Court of Appeal, the HSEs appeal is dismissed [57].