United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR BRIAN LANGSTAFF QC (of Counsel) (7828 4000 - bl@cloisters.com) Instructed by: Messrs Thompsons Solicitors St Nicholas Building Newcastle upon Tyne NE1 ITH
For the Respondent	MR J BOWERS QC And MR SEAMUS SWEENEY (of Counsel) Gateshead Metropolitan Borough Council Directorate of Legal and Corporate Services Regent Street Gateshead NE8 1HH


 


HIS HONOUR JUDGE ANSELL

1. This is an appeal from a Decision of a Newcastle upon Tyne Tribunal who, following a hearing in September 2003 in a Reserved Decision promulgated on 15 September determined that the Appellants, insofar as they consist of employees of the Respondent, whose employment had been transferred out to Castle View Services Ltd in 1995, and transferred back to them on 1 January 2000, are Applicants whose complaints of unlawful deduction from wages are not well founded.
2. The Appellants consist of a group of staff who were all formerly employed in the School Meals Service of the Respondents, who as a result of a tendering exercise had their employment transferred to the private sector, namely Castle View Services, in 1995, and then transferred back to the Respondent on 1 January 2000. It was accepted and agreed that both transfers took place on the basis of TUPE Regulations. When staff transferred in 1995 their terms and conditions were governed by a national agreement, namely the National Joint Council Terms and Conditions for Manual Employees ("the White Book").
3. In 1997, following the transfer when the employees were still employed by Castle View, a significant change occurred in the national bargaining arrangements in local government, in that manual and white collar workers were combined in a single status agreement for local authority employees ("the Green Book"). This Green Book replaced the White Book, which had dealt with manual workers, and the Purple Book which had covered other staff. Part of the new arrangements were to reduce the working week for full-time staff from 39 down to 37 hours, which automatically led to an increase of 5.4% in the standard hourly rate, effective from 1 April 1999. Castle View did not implement that change for these Appellants, but on transferring back their employment to the Respondent in 2000, the change was given effect. This dispute therefore relates to the period from 1 April 1999 until 31 December 1999, when the Appellants contend that they should have been paid the increased hourly rate.
4. The main issue in the case is whether what transferred to Castle View was a contract simply incorporating the White Book, or whether what transferred incorporated the benefit of any subsequent or replacement collective machinery. There are two further issues to be determined. Even if the Green Book is held to be part of the contract, the Respondents say that, pursuant to Clause 4 of the Implementation Agreement, which brought into operation the Green Book:

"Employees within the scope of the Green Book are all employees of local authorities or other authorities of equivalent status in the UK."

Thus it is argued by the Respondents that private sector contracted out employees are not covered by the Green Book.

5. Further, pursuant to Clause 17 of the Implementation Agreement

"From 1 April 1999 the standard weekly hours of all full time employees will be 37. For part-timers there will be corresponding increases in hourly basic rates from the date of the reduction in standard hours for their full-time counterparts."

Further, Clause 8.1 of the Green Book provisions provided that"

"Part-time employees shall have applied to them the pay and conditions of service pro-rata comparable to full-time employees in the same authority."

It is therefore argued by the Respondents that since there were no direct full-time comparators in Castle View at the relevant time, the wording of the Agreement had no direct relevance to the Appellants.

6. This dispute originally came before an Employment Tribunal in December 2000, and in a Decision promulgated on 17 January 2001, they upheld the claim for unlawful deduction of wages. The Tribunal's conclusion was set out in paragraph 4 of their Decision as follows:

"4 After considering the matter at some length the Tribunal were of the view that the document which comprised the applicants' terms and conditions of employment was not exhaustive but was in effect simply a statement of main terms and conditions. Literal reading of the clause which appears at R50 might incline to the view that it was simply the National Joint Council for Local Authorities Services (Manual Workers) handbook, namely the White Book which formed part of the terms and conditions which transferred. However, having regard to the existence of the contract conditions of the other manual worker groups employed by the respondents and in particular to the evidence of Mr Robson 'in reality' there was no difference in these groups, we have concluded that upon a proper construction of the. agreement reached between the respondent and the applicant and which transferred to Castle View and back to the respondent it was the national bargaining machinery which was intended to be incorporated rather than a particular document which might have represented that agreement at the particular time"

7. The employers appealed to this Court, and in a judgment delivered on 17 May 2002, the Tribunal's Decision was set aside and remitted for a re-hearing. In the decision given by Lindsay J, he found that the reasoning of the Tribunal could not be supported, and it did not provide an acceptable answer to Gateshead's arguments that the Green Book was not part of the Appellants' contract. However, whilst the Tribunal held that the original Decision was insupportable, the EAT did emphasise that they were not holding that its conclusion was necessarily wrong. The Decision identified a number of areas that the EAT felt should be further explored by the Tribunal, including, as set out in paragraph 35:

"……whether there is any term proper to be implied or imported (whether by custom and practice or otherwise) that touches a switch from White Book to Green."

Lindsay J was also particularly troubled about the Constitution arrangements that brought to an end the old NJC manual workers and created the new NJC for all employees, and the interrelation between the two.

8. At the beginning of the second Tribunal's Decision they set out, in paragraph 5, further issues that had been identified arising from the EAT judgment as follows:

" (i) The Employment Tribunal would be asked to consider the events leading up to the abolition of the NJC for manual workers and the creation of the NJC for local government services.

(ii) The Employment Tribunal would be asked to consider the effect of this on the contracts of employment of on the one hand local government employees and on the other hand none local government employees.

(iii) The parties would also ask the Tribunal to consider what, if any, is the effect of the amendment and/or replacement of the White Book terms by the Green Book and in particular whether there is any difference between the two.

(iv) Whether any future agreement transfers to a transferee in the sense that the agreement did not exist at the time of the transfer.

(v) Whether there is a full time comparator in any event in order to give rise to any practical application of the relevant Green Book terms in the hands of the employees in question."

In addition there was an issue relating to Regulation 12 of TUPE, which contains a general prohibition on contracting out.

9. In fact no additional evidence was put before the Tribunal save for a minute of a meeting of the NJC Manual Council held on 10 July 1997, to which we shall make reference; in particular no evidence was produced to support any custom and practice to suggest that there was a seamless transfer of all the White Book conditions to those on the Green. The Tribunal's conclusion was contained in paragraphs 17 and 18 of their Decision as follows

"17 Accordingly as no additional evidence has been offered other than the minute to which reference has been made this matter becomes a matter of construction of the contract and in absence of our being able to imply by the application of the usual test so that the Green Book was meant to apply to outsourced employees such as these applicants then the express term clearly does not suggest that they were included, but even were we to be wrong about that then the express terms which provide for a pro rata payment for part-time employees to that being received to equivalent full-time employees by virtue of the reduction in hours could not apply where in the same employment there were no such full-time employees.

18 Accordingly as our original reasoning has been found to be at fault and as the parties have been invited to offer further evidence which might have introduced some other interpretation or construction of the contract we are unable to find that such a construction or interpretation is appropriate and have no alternative but to conclude that our original decision was wrong and that the applicant's claims in this respect are not well-founded."

10. The first issue therefore to consider is whether the terms of the Appellants' contract with the Respondent, as at the date of transfer to Castle View, allowed for her pay to be governed not only by the terms of the White Book but by the terms of any subsequent collective agreement which might subsequently be adopted by the successor body to the NJC Manual Workers. Mr Langstaff's submission suggested that this issue was of considerable importance, not just to the former employees of Castle View and Gateshead, but to any employee affected by the answer to the question as to whether the Green Book replaced the White Book, such that an employer, who had bound himself by contract to pay in accordance with the White Book terms and conditions, be bound immediately thereafter to remunerate his employees on the Green Book terms. Having said that, neither Counsel could in fact identify any other case that had arisen from this problem, and bearing in mind the passage of time since the implementation of the Green Book, one would have thought that the problem would have come to light by this time.
11. Mr Langstaff took us through the contractual documents that had been put before the Tribunal. The letter dated 2 November offering the position to Mrs Ackinclose had referred to:

"Wages and Conditions of Service will continue to be in accordance with the NJC (Manual Workers) Agreement ……"

In her terms and conditions of employment, her hourly wage rate was defined as "NJC (Manual Workers) Agreement Grade 1", and in the final paragraph of her terms, set out the following:

"Please note that the above is an outline of your main terms and conditions of service. Full details are contained within the National Joint Council for Local Authorities' Services (Manual Workers) Handbook insofar as they are adopted by this Authority."

It was agreed that Gateshead had indeed adopted the Handbook. Both parties accepted that the old NJC had power to change the terms and conditions of the White Book arrangements and those changes became part of the Appellants' contract. The EAT, in their Decision, recognised the ability of the NJC to negotiate these changes, and in paragraph 12 Lindsay J said this:

"Whilst the NJC terms shown to us do not expressly provide for how those should be changed, that rates should change over time was inevitable and the functions of the NJC (Manual Workers) were expressed to include consideration of proposals and the taking of action as to the provision of machinery for the regular consideration of wages, hours and working conditions."

12. Mr Langstaff then took us to the minute of the meeting of the NJC Manual Workers held on 10 July 1997. That meeting resolved that:

"1 The Implementation Agreement presented to the meeting of the NJC on 30 January 1997 is hereby adopted:

2 Accordingly the present national scheme of conditions of service is hereby replaced by the new scheme of conditions of service (the "Green Book") as supplemented and in accordance with the Implementation Agreement with effect from 10 July 1997."

In that meeting, the NJC manual workers resolved to dissolve.

13. Clause 1 of the Implementation Agreement, therein referred to, provided as follows:

"This provides for the implementation of the agreement between the national Employers and the trade unions (a) to introduce a new national agreement in place of the APT& C handbook (Purple Book) and the Manual handbook (regionally variable colours and (b) to merge the existing negotiating machinery for APT& C and Manual Workers.

2 From 1 April 1997 the national agreement for former APT& C and Manual employees will consist of a new handbook to be known as the Green Book. ….."

Mr Langstaff's argument, simply put, is that the NJC Manual had the ability to agree to changes in the White Book from time to time under the collective bargaining machinery, and that those changes were thereby incorporated into the Appellant's contract. Those changes could also include both handing over power to the new NJC and the acceptance of the new Green Book and that as a result, the new NJC, and the Green Book thereby became part of the Appellants' contract. In particular Mr Langstaff points to the similarity in both constitutions between the old body and the new, and the fact that many of the provisions of the old White Book were carried over into the new Green Book.

14. He then referred us to Lord Hoffmann's oft quoted five principles, by which contractual documents are nowadays construed, as set out in ICS Ltd -v- West Bromwich Building Society [1998] 1 WLR 896 at page 912.

"My Lords, I will say at once that I prefer the approach of the learned judge. But I think I should preface my explanation of my reasons with some general remarks about the principles by which contractual documents are nowadays construed. I do not think that the fundamental change which has overtaken this branch of the law, particularly as a result of the speeches of Lord Wilberforce in Prenn v. Simmonds [1971] 1 W.L.R. 1381, 1384-1386 and Reardon Smith Line Ltd. v. Yngvar Hansen-Tangen [1976] 1 W.L.R. 989, is always sufficiently appreciated. The result has been, subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of "legal" interpretation has been discarded. The principles may be summarised as follows:

(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2) The background was famously referred to by Lord Wilberforce as the "matrix of fact," but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.

(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax. (see Mannai Investments Co. Ltd. v. Eagle Star Life Assurance Co. Ltd. [1997] 2 WLR 945

(5) The "rule" that words should be given their "natural and ordinary meaning" reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in The Antaios Compania Neviera S.A. v. Salen Rederierna A.B. 19851 A.C. 191, 201:

 ". . . if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense."

He then invited us to consider the context or "background", as Lord Hoffmann put it, in respect of the creation of the new NJC, the Implementation Agreement and the Green Book, namely:

(1) the desire to phase out a situation in which there were two sets of pay and conditions affecting the bulk of Local Government employees and to harmonise them, and to create one overall NJC Council.

(2) Most importantly, the intention that those who had been subject to one or other of the two existing machinery would now be subject to the new Single Status Agreement; in other words there was clearly an intention that employees, such as the Appellants, should not be excluded Such intention could be ascertained from the minutes of the NJC Manual Workers referred to above.

(3) A similarity in words, both within the Constitution and within the Green Book, to that which previously appeared.

15. By way of response on this issue, Mr Bowers submitted that there was no effective bridge between the old White Book and the Green Book, such that the Green Book was incorporated into the Appellants' contract of employment. He submitted that a collective bargain in itself is not legally enforceable - see section 179(1) of the Trade Union and Labour Relations (Consolidation) Act 1992, and therefore in order for the new collective bargain to have legal effect, the Tribunal needed to identify and construe a bridge incorporating it into the Appellants' contract of employment, and also to find that the particular terms of the new bargain to be enforced are appropriate for incorporation. Indeed, if there is such a bridge and aptness, a unilateral abrogation of the terms of the bargain so incorporated is not permitted. In Whent & Others -v-T Cartledge Ltd [1997] IRLR 153 the Appellants were employed by the London Borough of Brent in the street lighting department, and their contracts of employment provided that their pay and conditions had been in accordance with the local authority's NJC's agreement. The contract stipulated that matters such as rates of remuneration and hours of work would be in accordance with the agreement made by the NJC and set out in the scheme of conditions of service and supplemented by the authority's rules and wages records, and as amended from time to time. The appellants were members of the GMB, one of the parties to this collective agreement. In due course, the street lighting contract was privatised and the employers wrote to the union withdrawing recognition and seeking to withdraw from the collective agreements. The employees claimed that despite this withdrawal, the pay was to be ascertained by reference to the NJC rates. The Employment Tribunal dismissed the complaint, but the EAT allowed the appeal. In giving the decision of this Court, Judge Hicks firstly cited from the judgment of Kerr LJ, in Robertson -v- Jackson [1983] IRLR 302, when he said this:

'It is true that collective agreements such as those in the present case create no legally enforceable obligation between the trade union and the employers. Either side can withdraw. But their terms are in this case incorporated into the individual contracts of employment, and it is only when those terms are varied collectively by agreement that the individual contracts of employment will also be varied. If the collective scheme is not varied by agreement, but by some unilateral abrogation or withdrawal or variation to which the other side does not agree, then it seems to me that the individual contracts of employment remain unaffected. This is another way of saying that the terms of the individual contracts are in part to be found in the agreed collective agreements as they exist from time to time, and, if these cease to exist as collective agreements, then the terms, unless expressly varied between the individual and the employer, will remain as they were by reference to the last agreed collective agreement incorporated into the individual contracts.

In paragraph 13 Judge Hicks went on as follows:

"The relevant statements of principle there, as the industrial tribunal accepted, were those of Kerr LJ that the terms of a collective agreement can be incorporated into and become legally binding terms of individual contracts of employment, and that unilateral abrogation of or withdrawal from the collective agreement does not affect the latter. Those principles, however, lead in the present case to the opposite conclusion from that at which the tribunal arrived. If the individual contracts of employment of the appellants remain unaffected by the respondent's withdrawal from the NJC agreement, and the latter remains in existence and in operation, the contract term referring to it can and should continue to have effect"

and, further at paragraph 16,

"The tribunal's next reason is that it 'cannot be right that an employer is bound ad infinitum by the terms of a collective agreement negotiated by bodies other than themselves'. In our view that is fallacious for a number of reasons. In the first place the employer is not in any event bound ''infinitum'. It can at any time, without breach of contract, negotiate variations of contract with individual employees, as its letter of 21 April 1994 professes it as being eager to do, or terminate their contracts on due notice and offer fresh ones. The latter course may no doubt lead to its incurring obligations to compensate for unfair dismissal, but that is a matter for it to weigh commercially. The words 'ad infinitum' are in truth no more than colourful surplusage; the question is simply whether the employer is still bound by the NJC agreement, so far as incorporated in individual contracts of employment, notwithstanding its 'withdrawal' from collective participation. The second reason why this argument is fallacious is that if correct there seems to be no reason why it would not have applied from the .moment of transfer, whether or not the respondent had 'withdrawn', since there is no finding, and little likelihood, that it had any representation on the management side of the NJC. The third is that there is simply no reason why parties should not, if they choose, agree that matters such as remuneration be fixed by processes in which they do not themselves participate. The tribunal themselves accept that that is true of some employers who are not local authorities. It must, on the agreed facts set out near the beginning of this judgment, equally be true of non-union employees"

16. Mr Bowers then submitted that what goes over the "bridge" from the collective bargain to the contract will usually be defined by reference to a named collective bargain. He submits that in this case, the Appellants' contract could but did not provide for a wider bridge by saying the following: for example the collective bargain would be "as defined from time to time" or in Whent where it is expressed to be "as amended from time to time" as provided as in William West v Fairgrieve EAT/701/98, that a third party may determine pay from time to time. Mr Bowers submits that without any such provision, there is no requirement that the employer must adopt future provisions.
17. Mr Bowers submitted that whilst the Appellants' terms and conditions might be varied under the old NJC arrangements, this would only be within the framework of the NJC Manual, and only within the scope of the White Book. In other words it was not permissible to substitute a new collective bargain for an old one without the "bridge" from the individual employment contract permitting that to happen. The Appellants had only given their authority to the NJC Manual and they had only agreed to be bound by the White Book. As Lindsay J had put it in the first EAT decision in this case, at paragraph 29.

"The NJC (Manual Workers) is a different body to the NJC for Local Government Services; they have different functions, a different balance between members and different constitutions. The differences cannot be glossed over. A reference to one is not, without more, a reference to the other. If, as the Tribunal rightly held, a literal reading of the letter from Gateshead to Mrs Ackinclose of 28th September 1994 supra, as an outline of her main terms of contract, might lead to a view that it was only the White Book that was incorporated, it would not at law be possible to avoid that conclusion by reference to the different terms upon which different classes or workers were later engaged. In any event, accepting that the letter of 28th September 1994 was only an outline of the main terms, as the Tribunal itself said, that would still leave the earlier offer and acceptance as the contract itself, and that refers to her contract continuing to be in accordance with the agreement of the NJC (Manual Workers) without mention of any successor body. A contract is to be construed by reference to its own terms (those which it contains or which it incorporates) and not by the terms of quite extraneous contracts".

18. Nothing new has emerged in this case which in our view alters the view that was expressed by Lindsay J, as set out above. There is, in our view, no need to consider the background or context in which the new NJC and/or Green Book came into existence, when the contract of employment itself is clear. The contract only made reference to the NJC Manual Workers as a negotiating body, and only made reference to their handbook (the White Book) as the relevant collective bargain, and without any further reference or incorporation, it seems to us that no successor body or successor agreement can be held to be part of the contract of employment. Therefore the Tribunal were correct in their conclusions.
19. In case we are wrong on this issue, we will deal with the remaining two issues raised in the case. The next issue concerns the effect of the Implementation Agreement on the basis that the NJC and Green Book became part of the Appellants' contract of employment. As the Tribunal found, by virtue of clause 4 of the Implementation Agreement, to which we have referred above, outsourced employees were excluded from the benefit of the Green Book. Mr Langstaff submits that in coming to that conclusion, the Tribunal omitted to consider the effect of Clause 5 of the Implementation Agreement which provides that:

"Where contracts of employment incorporate national agreements, references to the former APT& C or Manual agreements will now be to the new Green Book. Employees need to be notified individually, accordingly, at a suitable opportunity."

He submits that Clause 4 is a scoping provision for the direct application of the Green Book, and is descriptive rather than prescriptive, and although coming before Clause 5, should be construed as standing apart from it. He submits that it is no more than an agreement between the national employers and trades unions that all employees of local authorities, or other authorities of equal status, will have Green Book terms and conditions applied to them, but it is not intended as a provision which excludes other staff. Indeed he submits that it is more applicable to those persons who become employees after the implementation of the Green Book. He points to the similarity of Clause 4 to the old Clause 3(a) in the NJC Manual Workers Constitution, which provided that:

"The functions of the Council as specified in Clause 8 hereof shall relate to all manual workers in the employment of all local authorities and joint authorities established under the 1985 Local Government Act and other bodies of equivalent status. …."

He also argues, again as a matter of textual interpretation, that it cannot have been the intention of the parties to the new agreements to exclude contracted out employees, who were previously covered under the White Book arrangements. He submits that Clause 5 clearly refers to existing employees, with the reference to the necessity to notify employees, which is consistent with a requirement to inform existing employees of a variation or substitution of terms and conditions, rather than the concept of offer and acceptance, which would be applicable for new employees.

20. Mr Bowers, in response, submits that Clauses 4 and 5 have to be read together and that Clause 4 is both descriptive and prescriptive and that Clause clearly provides that the only employees who fall within the scope of the Green Book are those employed by local authorities; Clause 5 merely covering those local authority employees who were formerly covered under the White or Purple Books. He argues that the position of contracted-out employees must have clearly been in mind when these arrangements were made, and he submits that there has been a purposeful and deliberate intention of excluding them. In support of this contention, he refers us to paragraph 21, where particular problems in relation to direct service and compulsory competitive tendering were dealt with.
21. We accept Mr Bowers' argument. In our view, the language of Clause 5 is clearly governed by the scoping provisions of Clause 4, and the reference to "contracts of employment" is clearly a reference to those employees within the scope, as identified by Clause 4 and there is nothing, in our view, to expand its scope which is the argument advanced on behalf of the Appellants. There is nothing, either in the remaining language of the implementation or the other part of the Green Book, which could lead to the construction that contracted-out employees were included within the new provisions.
22. Finally, we deal with the issue of whether there would be a necessity for a full-time comparator in the same authority in order for the provisions of the Green Book to apply.
23. The relevant provisions are firstly, Clause 17 of the Implementation Agreement, which provides:

"From 1 April 1999 the standard weekly hours of all full-time employees will be 37. For part-timers there will be corresponding increases in hourly basic rates from the date of the reduction in standard hours for their full-time counterparts."

Clause 6.1 of the Green Book provides:

"The standard working week for full-time employees is 37 hours"

and Clause 8.1 provided that

"Part-time employees shall have applied to them the pay and conditions of service pro rata to comparable full-time employees in the same authority …."

24. As we have indicated above, the Tribunal found that the express terms which provided for a pro rata payment of part-time employees to that being received by equivalent full-time employees by virtue of the reduction in hours, represented a 5.4% pay increase could not apply, since there were no such full-time employees employed by Castle View at the time the reduction in working hours came into operation. Mr Langstaff argued that the effect of paragraph 17 means that once there is a reduction of two hours, the pay increase of 5.4% must follow, and there is no need to have an actual full-time comparator for that to be ascertained.
25. Mr Bowers submitted that Clause 17 cannot be read in isolation and that Clause 8.1 must also be considered as part of the Agreement. Its language is mandatory and requires a three-stage process. First of all, were there full-time employees in the same authority or organisation? Secondly, were those employees comparable, and if so what is the pro-rata pay rate that part-time employees should receive? He also argues that the reference to full-time counterparts in Clause 17 of the Implementation Agreement should be construed as reference to comparable full-time employees in the same authority, as defined in Clause 8. These issues were fully ventilated before the Tribunal by Counsel who appeared below, and we can find no fault in the Tribunal's conclusions, when they accepted the arguments now being advanced by Mr Bowers.
26. Accordingly, for the reasons we have set out, we dismiss this appeal.