CLUGSTON CONSTRUCTION LIMITED v MR J A TAYLOR AND OTHERS [2000] UKEAT 268_99_0205

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 268_99_0205Case No Appeal No. EAT/268/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CLUGSTON CONSTRUCTION LIMITEDAPPELLANTMR J A TAYLOR AND OTHERSRESPONDENT
Before
Mr Justice Burton Ms B Switzer Mr B WarmanDate 2 May 2000
[1]APPEARANCES For the Appellants MISS INGRID SIMLER (of Counsel) Instructed by: Messrs Masons Solicitors 30 Aylesbury Street London EC1R 0ER For the Respondents MR PETER GROBEL (of Counsel) Instructed by: Messrs O H Parsons & Partners Solicitors 3rd Floor., Sovereign House 212-224 Shaftesbury Avenue London WC2H 8PR MR JUSTICE BURTON : For many years there was a collective agreement, nationally negotiated, in the construction industry, called the CECCB Working Rule Agreement (or "WRA"), under the aegis of the Civil Engineering Construction Conciliation Board for Great Britain ('CECCB'). There was also a WRA of the National Joint Council for the Building Industry ('NJCBI') which has not directly concerned us. The CECCB WRA was negotiated annually through a body called the Building and Civil Engineering Joint Board ('BCEJB') and provided for the yearly wage review for relevant workers within the construction industry, implemented each year as from the last week in June. It was not provided to be legally binding pursuant to s.179 of the Trade Union Labour Relations Act 1992 . Most, if not all, of the members of the various employer bodies involved in the CECCB arranged that the terms of the CECCB WRA were incorporated into the annually negotiated individual contracts of employment of their employees. When so incorporated, the terms of the annual CECCB WRA became terms of the individual contracts of employment of those employees, notwithstanding that the collective agreement itself was not legally enforceable as between employer bodies and the trade unions (see Marley v Forward Trust Group [1986] IRLR 369 CA ).[2]The provisions of the WRA governed a number of terms and conditions of employment. So far as remuneration was concerned its primary function was to fix a minimum hourly rate for the next year. It did not govern the amount of any bonus to be paid, which was negotiated locally between employer and its employees, by way of variable supplement to the minimum wage.[3]For reasons that do not need to concern us on this appeal, the CECCB, it seems, ceased to exist in October 1996, which meant that the last CECCB WRA negotiated under the aegis of the CECCB was for the year 1996/7 expiring at the end of June 1997. The relevant minimum hourly rate provided in that WRA was £4.58. Clugston Ltd, the Appellant in this appeal, did incorporate the CECCB WRA into its contact of employment, and the 1996/7 WRA and £4.58 rate were set out in Particulars of Terms of Employment dated 6th April 1997, which also provided for a £1.50 per hour bonus.[4]In circumstances which again do not matter for the purposes of this appeal, negotiations were commenced in 1997 between various employer bodies, not precisely the same as those which had formed the CECCB, and the unions, under the overall aegis of a new body called the Building and Civil Engineering Joint Negotiating Committee ('BCEJNC') whose most immediate task was to agree, if they could, rates for 1997, against the background of the expiry of the then extant CECCB WRA at the end of June 1997, but which had, as will be seen, other purposes. The outcome of those negotiations formed a significant part of the argument in this appeal, and we shall return to it. What should be stated is that one matter that was agreed in the course of those negotiations was that the hourly rate for 1997/8 would be £4.83.[5]By letter dated 18th August 1997 ('the 18th August letter'), Mr March, the production director of the Appellant, wrote to the Applicant employees as follows:
" WAGE REVIEW 1997 I am pleased to inform you that, following completion of negotiations for this year's Wage Review, your pay will be altered with effect from Monday 18th August, 1997, as detailed below: Basic Hourly Rate: £4.83 Fare and travel allowances will not be paid for distances less than 10 kilometres … Extra payments, plus rates, height money, exposed work, special allowances for abnormal conditions and other payments will NOT be increased. Tool and clothing allowances will cease to be paid. …"
For 1997/8 £4.83 would be the hourly rate, and £1.50 remained the bonus; and no new statement of Particulars of Terms of Employment was issued.[6]In December 1997, a new Industry Joint Body was established, called the Construction Industry Joint Council ('CIJC'), and with it came a new WRA called the CIJC WRA. By a special edition of a publication called Employment Briefing , this news was published and advice was given to employers as follows:
"The Action you must take now Employers must issue operatives with new Statements of Terms of Employment. In June 1998 the existing Working Rule Agreements for both the … NJCBI and … CECCB are to be replaced by a single new Working Rule Agreement called the [ CIJC WRA ]. Where operatives are currently employed under the terms of the existing agreements, you should issue a new revised "
Statement of Particulars of Terms of Employment" which must refer to the new Working Rule Agreement. … NB You will not be able to apply the CIJC [ WRA ] unless you issue a new "Statement of Particulars of Terms of Employment"."[7]By letter dated 24th June 1998 the Appellant sent to the Applicant employees a letter which read as follows:
" WAGE REVIEW 1998 As you may be aware a new [ WRA ] has been formed in respect of revised terms of employment and increases in pay for operatives in the construction industry. I enclose two copies of a revised Statement of Particulars of Terms of Employment setting out the new rates of pay offered to you with effect from 29 June, 1998, and which incorporates the revised provisions of the new [ WRA ]. If you decide to accept these new terms you should sign one copy and return it to me, and retain the other copy for your records. … Until we receive your acceptance your current pay and conditions will apply. …"
It included two copies of the new proposed Particulars of Terms of Employment which (i) was headed up Construction Industry Joint Council (ii) referred to and incorporated the provisions of the CIJC WRA (iii) provided for the minimum basic rate of £5.50, which was the relevant rate under the CIJC WRA (iv) reduced the bonus to £1.08 per hour. On the face of it, that was an offer that required acceptance, of incorporation of the CIJC WRA and consequential receipt of the £5.50 per hour minimum rate there by prescribed, but with £0.42 less bonus per hour than in the previous year – still leaving an overall increase in hourly rate from 1997/8 of £0.25 per hour. The Applicant employees refused to agree it and have continued to work for the Appellant under protest, alleging and claiming before the Employment Tribunal that they are entitled to the £5.50 and to £1.50 bonus.[8]This is an appeal against the unanimous decision of the Employment Tribunal at Leeds, chaired by Mr Morris. They heard an application by 39, now 35, Applicant employees of a construction company called Clugston Ltd, now the Appellant, against the Appellant, based upon an allegation that as from July 1998 the Appellant underpaid them, making unlawful deductions pursuant to the Employment Rights Act 1996 . They alleged that they were entitled to(i) the minimum wage rate fixed in the course of the negotiations in 1997 between the unions and the employer bodies for the year 1998/9(ii) additionally the continuation for 1998/9 of the bonus rate that had been agreed by the Appellant for 1997/8. The Tribunal decision[9]The Employment Tribunal concluded that the Applicants were so entitled, on the basis of a construction of the contract between the Appellant and the Applicant employees, to which we shall turn, but they come to such a conclusion in somewhat peculiar circumstances which we now recount:(i) the Applicant employees were represented by a trade union, and by Counsel instructed on their behalf by that union. There is nothing at all unusual in that. The Appellant was represented by a consultant, who was Industrial Relations Adviser in the Employment Affairs Department of the Construction Confederation, i.e. an employer body. Nothing perhaps unusual about that. What is perhaps more unusual is that none of the Applicant employees and no one from the Appellant was called as a witness. The witnesses who gave evidence were on the one side a representative of an employer body and on the other side a representative of a trade union, and they each gave evidence about what happened in the 1997 negotiations. It meant that no evidence was given to what happened as between the Appellant and the Applicant employees, and indeed no evidence which on the face of it had anything to do with the circumstances or construction of the documents to which I have already referred in this judgment.(ii) No assertion was made that the employer bodies who took part in the 1997 negotiations were acting as agents for the Appellant, or that the trade unions who took part were acting as agents for the 35 Applicant employees, nor consequently any evidence, at any rate expressly, led for the purpose of establishing such assertions for either of them.(iii) A case of estoppel was put forward by Mr Grobel, Counsel on behalf of the Applicant employees but instructed by the union, at the Tribunal and before us, the precise nature of which was unclear to us, not least because, as will be seen, it was not described at all in the Tribunal decision.(iv) No findings were made by the Employment Tribunal at all on the basis of the evidence it heard as to what happened in 1997 negotiations; indeed, as will be seen, they made no reference to the content of such evidence at all, nor as to whether there was an estoppel, and if so of what kind, and on what basis, nor any finding at all as to whether (if relevant) there was an agency relationship as referred to above. The latter is of course not surprising given that there was no assertion to that effect, but on the other hand without such a relationship it appeared to us impossible to understand how any conduct, whether allegedly leading to an estoppel or otherwise, during the course of negotiations at which neither Appellant or the Applicant employees were present could be relevant to any consideration before the Tribunal. (iv) When the Tribunal came to make its decision therefore, it made no conclusion about, and did not recite, that which it seems had taken up the vast majority of the time before it, but in the event it purported to make a decision about the construction of the contract between the Appellant and the Applicant employees, in some way informed by the evidence relating to negotiations and/or the estoppel arguments which they had heard, but as to which they made no findings, and yet, on the face of it, by reference to some, but not all, of the documents to which we have made reference in this judgment.[10]We return to the Decision: Paragraph 1 : This refers to, but does not name, the two witnesses who were called and then sets out that estoppel arguments were made, but does not indicate their nature, and it is the last, or almost the last, we hear of them. Paragraph 2 : This recites that the Chairman has sat with members, so that he was able to incorporate and take advantage of their industrial experience and then continues:
"As things have turned out, that has been of great benefit, because otherwise the legal niceties of the application of the law may have led the Tribunal into error. Frequently in industrial situations decisions are taken between trade unions and employers on the basis of pragmatism, rather than adhering to the strict niceties of contract law. It may be that when this is done it is possible because of the legal recognition of estoppel by convention. Be that as it may, this is common industrial practice."
We do not understand at all what is meant by "the legal niceties of the application of the law may have led the Tribunal into error" , not least because, at any rate on the face of it, the Tribunal then proceeds to base its decision entirely on an apparent construction of the legal niceties, and the legal niceties indeed not as between trade unions and employers but, as interpreted by the Tribunal, as between the Appellant and its employees, see in particular paragraph 3(e) of the decision. We also do not understand what is meant by the delphic reference to "legal recognition of estoppel by convention" , which also does not appear to feature thereafter, as we have previously noted. Paragraph 3 : Reads as follows:
"In this case the facts are that: (a) The contracts of employment of the Applicants incorporated into them the working rule agreement of a body referred to under the letters [CECCB], which was part of a negotiating body which included other employers in the construction industry and trade union representatives. (b) Unfortunately, in November 1996 as a result of various matters we need not go into, the employer's side of that body was not able to participate in negotiations, although the operative side was available to do so. (c) The failure to reach agreement, an agreement which could cover the construction industry relating to pay and conditions, would have been to lead to division and contention and strife within the industry. No-one would have known what were the proper rates of pay and all the individual constituents in the industry would have had to be been arguing between themselves, employees against employers, about those rates. So the trade unions and the rump of employers' representatives, agreed between them that there should be negotiations, that they would put in place an agreement and that it should be a comprehensive agreement to take them up to the year 2000. It should be a three year agreement. (d) Such an agreement was struck, with many changes in not only the rates of pay but in the way pay was worked out. There was give and take on both sides, the negotiations were thorough and it was clear that that was a whole package for the years 1997, 1998 and 1999 up to the year 2000. (e) Whether or not the Respondent to this action was party to that negotiation, whether or not those negotiating were acting on its behalf, it is clear that the Respondent to this action did in fact accept that agreement, because it wrote to its operatives setting out and accepting the new pay rates for 1997, without any derogation from the further years. The Applicants, as with other operatives, worked on the basis of those new rates and that new agreement. It was thereby incorporated into their contracts of employment, not merely for the year 1997, but for the subsequent years of the three year agreement. (f) In 1998, however, the Respondent submitted to each of the Applicants a new statement of particulars of employment which incorporated the new working rule agreement, now officially recognised by a new joint negotiating body. In a sense that was a step to tidy up the paperwork, because it is clear, and it is trite law, that a statement made in particulars of employment is not itself "the contact of employment", although it is frequently referred to as such, it is an evidential document which refers to the main terms and conditions. The contract of employment in this case was much wider than that document. That is to say it incorporated the full three year agreement. But, in any event, the fact that the employer submitted that document to the Applicants, showed that the employer in fact accepted that that agreement was indeed for three years. (g) The problem was that the agreement did not cover, as it had never covered, the question of bonus, a fixed bonus, and that was a matter traditionally for local agreement and each of the Applicants was paid a fixed bonus, and the Respondent attempted to make the signing of the new statement of terms and particulars conditional upon the Applicants accepting a reduced fixed bonus. There was no negotiation, locally or otherwise, about that, the Respondent simply introduced, without any prior discussion, a new reduced figure into the document it was attempting to get the Applicants to sign. (h) Not surprisingly, the Applicants before us refused to sign the document in those terms. That is not to say that they did not, for their part, accept that the new agreement for the three year period did apply to them. They were merely being asked to sign a document which inaccurately expressed the position, but which they feared would bind them as agreeing to something which had not been negotiated, was outside the 3 year agreement and was an attempt to impose a reduction in their fixed bonus unilaterally. (i) So, the position is this, the rump of the employers agreed with the trade unions a three year deal which the Respondent showed that it accepted in the way referred to and which was thereby incorporated into the contract of each of the Applicants, without the necessity for their having to sign new particulars of terms and conditions of employment, although, at some stage, they would be useful and necessary under the law perhaps, to tidy up the paperwork."
We do not agree at all with the Tribunal that legal analysis of the position. In particular we note the following: (i) In paragraph 3(e) the Tribunal expressly says that it makes no decision on the agency issue. (ii) We find the statement that the Appellant "did in fact accept that agreement" [ i.e., "the whole package"] because it wrote accepting the new rates for 1997, without any derogation from the further years" (a reference to the 13th August letter) and indeed the concept of derogation extremely difficult to understand. Unless it be that the pay rates for 1998 and 1999 were, in some way, already binding upon the Appellant, and an entitlement of the Applicant employees, outwith the ambit of the 13th August letter – whether as a result of incorporation or as a result of agency, as to neither of which a finding was made - then the non-mention of 1998 and 1999 pay rates in the 13th August letter is at best neutral, and is more likely probative of the Appellant's case that all that it was then agreed had been incorporated was the 1997 rate. (iii) The statement in paragraph 3(f) of the decision that the submission by the Appellant by way of an offer of the CIJC WRA for 1998, with the lesser bonus, "shows that the employer in fact accepted that that agreement was indeed for three years" is once again a non-sequitur, or at any rate does not show that the Appellant believed it was already bound, and the employees already entitled to the rate of £5.50, as a result of the 1997 negotiations. Paragraph 4 : We shall return to this paragraph of the decision below. The 1997 negotiations[11]We turn then to the outcome of the 1997 negotiations, so far as they appeared before us. This is contained in a series of documents sent out by the Construction Confederation to employers and trade unions on 22nd July 1997 under cover of a letter which, in material part, reads as follows:
" Resolution and Promulgation Notice I have pleasure in enclosing a copy of the "
Resolution and Promulgation Notice " for your information. A copy of the [ CIJC WRA ] and full details of the rates of pay and allowances applicable from 29th June 1998 and 28th June 1999, will be sent to you as early as possible. …" The Resolution and Promulgation was then contained in a five page document under the heading of the BCEJNC. In material part it reads as follows:
"RESOLUTION AND PROMULGATION Following the recommendations of the [ BCEJNC, CECCB and the NJCBI ] have adopted the recommendations for a three year agreement on pay and conditions and thereby settles all outstanding claims. The date of promulgation is 23 July, 1997. It is agreed that the following amendments to the Working Rules of the CECCB and NJCBI will take effect on and from Monday 18 August 1997."
Then follow five numbered paragraphs which move sequentially down the existing CECCB and NJCBI WRA's. Paragraph 1 deals with Basic Rates – relevantly £4.83 per hour. Paragraphs 2, 3, 4 and 5 deal with other existing paragraphs of the 1996/7 WRA's, and there is then the concluding rubric in capital letters:
"NB. THE WORKING RULES OF THE CECCB AND NJCBI WILL NOT BE REPRINTED IN 1997." and then there is an emphatic dotted line underneath. There then follows a further paragraph, headed up "1998", with a numbered paragraph 6 as follows: "
PAY With effect from 29th June 1998 a new [ WRA ] will become effective covering the building and civil engineering industry. The [ WRA ] will include a pay structure with a general operative and additional skilled rates as well as the craft rate. Plus rates and additional will be consolidated into basic pay to provide the following rates: …" New and more complicated rate differentials are then set out, including a "Craft Rate" of £5.50 per hour. There is then another emphatic dotted line and, on the next page, numbered paragraph 7 under the heading "1999":
"With effect from 28th June 1999 Basic Rates of Pay will be increased as follows:- …"
Once again there follow individual rates, more complicated than the existing ones under the CECCB WRA, and including that for a "Craft Operative" of £6.05. The Appellant's case[12]The Appellant submits as follows:(i) What it then did was exactly in accord with what it learned from the Resolution and Promulgation Notice and then was in express terms advised by the Employment Briefing of February 1998.(ii) The CECCB WRA remained incorporated in the contract of employment of the Clugston employees for 1997/8 with the increased rate of £4.83. The Appellant left the bonus at £1.50, as it was.(iii) A new WRA was indeed then negotiated as forecast, which had many different terms and was published in December 1997 which did indeed include the various new rate, including the £5.50 craft rate. This new 1998 CIJC WRA was for one year. There was in due course a 1999 CIJC WRA as from 28th June 1999, which included the pre-agreed rate of £6.05.(iv) The 18th August letter was simply giving notice of the new CECCB WRA rate for 1997/8. The Respondents' submissions[13]The submissions of Mr Grobel in contract (leaving aside estoppel) while loyally seeking to uphold the conclusions of the Employment Tribunal, have really been put as follows before us:(i) A three year package was agreed, including £4.83 for 1997 and then, as the bands expanded for 1998 and 1999, as to the relevant bands £5.50 for 1998 and £6.05 for 1999.(ii) This package was part of the 1997 WRA, by what he called a "merger". He relies upon the sequential numbering of the paragraphs of the Resolution and Promulgation document.(iii) Because of the provision for incorporation of the 1997 WRA into the contracts of employment of the Clugston employees, or rather the fact that statement of terms and conditions of employees, which incorporated the 1996 WRA, continued in effect through into 1997, because no fresh particulars were issued, the 1998 and 1999 rates were thus, because they formed part of the 1997 WRA, automatically incorporated into the individual contracts of the Clugston employees.(iv) Thus the 18th August letter did not need to mention the 1998 and 1999 rates because they were already, or at any rate simultaneously, automatically incorporated. Conclusions on Contract[14]We do not agree with the Respondents' submissions, any more than we agree with the bold statement in the Tribunal decision that by the 18th August letter the Appellant "did in fact accept" the rates for 1998 and 1999, albeit that no mention was made of them by the Appellant to its employees, or at all. In his first analysis, as we pointed out to him in the course of argument, Mr Grobel himself in our view summarised the outcome of the 1997 negotiations in a way unfavourable to his own case, when he described the 1997 agreement between trade union and employer bodies as having two parts, the amendment of the 1997 WRA and the agreement on rates for the three years. We are satisfied that this is indeed an accurate construction of what occurred, at least as far as the documents before us are concerned.(1) The parties agreed to amend the CECCB WRA for another year, thus leaving it in existence because of the shortage of time, with the 1997/8 year already commenced, and to increase the minimum rate for 1997/8 within it. It was clearly anticipated that, as in previous, and in the event in subsequent, years, the WRA would be annual, and would be, or would continue to be, incorporated into the contracts of employment of most if not all of the members of the employer bodies. That was the subject matter of the first five paragraphs of the Resolution and Promulgation document ending with the rubric about the fact that the WRA's (as so amended) would not be reprinted in 1997.(2) The parties also agreed that there would be a new WRA negotiated and in place in time for the next year's annual wage round (and thus for incorporation into individual contracts of employment).(3) Further the parties agreed that, whatever form such WRA would take, it would contain certain pre-agreed rates and, so far as the new proposed craft rates were concerned, for 1998 £5.50 and 1999 £6.05. This is the content of the numbered paragraph 6 relating to 1998 and the numbered paragraph 7 relating to 1999.[15]The second and third such agreements were not documents which were, or were to be, expressly incorporated, automatically or otherwise, into the individual contracts of employment of employees(a) because they were not the 1997 WRA(b) because they were not merged with, or part of, or an amendment to the 1997 WRA(c) because the 1997 WRA was not a three year WRA (which would in any event have been a new animal) because there was going to be a new WRA the next year with substantially different terms (and in the event even that new WRA was only an annual WRA). This conclusion also fits with the structure of the letter of 22nd July 1997, quoted above, which, by indicating that "a copy of the CIJC WRA" (not yet negotiated and not in the event finalised until December 1997) and "full details of the rates of pay and allowances applicable from 29th June 1998 and 28th June 1999, will be sent to you as early as possible" again suggests, and indeed emphasises, that these are for the future, and different from the existing CECCB WRA, as amended by the increased rates, which is to be effective as from 18th August 1997.[16]In those circumstances, we are clear that the only term as to rates which was incorporated into the individual contracts of employment of Clugston employees for the year 1997/8, by way of the continued incorporation into those contracts of the CECCB WRA, was the minimum rate for that year, and that the Appellant did not agree with its employees, either expressly or impliedly or by incorporation, any increases for 1998 or 1999, unless and until a WRA including those increased rates was incorporated into those contracts of employment by agreement. All that had been agreed as between the employer bodies and the trade unions was that as and when such new WRA (in fact to be the CIJC WRA) was finalised it, would contain, among other terms, certain pre-agreed figures as to rates. That indeed occurred, and the Appellant was in those circumstances entitled (absent any finding of estoppel) to offer to incorporate the new CIJC WRA into its contracts of employment, along with such terms, as to bonus or otherwise, as it could agree or negotiate with its employees. The Appellant had neither agreed with its employees in 1997, nor in 1998 by submitting the document, that it would be or was bound by the rates which had been negotiated at the BCEJNC in 1997 for such future WRA's.[17]The Appellant submitted below, that even if it was bound by the minimum rate, it was entitled to reduce the bonus, and was not bound therefore both to pay the £5.50 and to continue the previous years' bonus figure of £1.50. This submission was not in terms addressed by the Tribunal in paragraph 4 of its decision:
"The result of that is that the Tribunal finds that the complaints of the Applicants that they have not been paid and should have been paid the new rates of pay, together with the bonus to which they were already entitled , means that there has been an unlawful deduction of wages."
It seems to us to have assumed that the £1.50 was a bonus "to which they were already entitled" , without giving reasons for that conclusion. The Appellant's case would be that the annual wage round included the fresh negotiation of the amount of bonus, up or down. If we had concluded that the Appellant was bound by the £5.50 figure we would have remitted the issue as to whether it was indeed also bound by the £1.50 for full consideration and evidence; for without a reasoned conclusion on that issue also, there would be no underpayment, for of course by paying, as it did, a total of £6.58, being more than £5.50, there would be no underpayment unless the Appellant was obliged to pay £7. Estoppel[18]These conclusions would be sufficient for us to allow the appeal, being clear that there was no unlawful deduction of wages. However, as indicated, this is upon the basis of the contractual argument, upon which, on the face of it, the Employment Tribunal reached its decision, and which we consequently considered without any reference to the issue of estoppel. As appears from what we have said above, the nature of the 'estoppel point', apparently run before the Employment Tribunal, and briefly referred to, but not explained by, the Tribunal in its decision, was unclear to us. Miss Simler in her skeleton argument raised a number of questions as to its existence and nature, which were unanswered by Mr Grobel prior to the hearing, or indeed in the course of his submissions. It was in particular unclear whether it was being said to depend upon something said or done by the Appellant, or rather by the employer bodies in the course of the 1997 negotiations, allegedly as the Appellant's agents: if the latter, the nature of the representations or conduct and of the agency would have to be spelt out, and very difficult issues would need to be addressed, including the question of whether it might be that such an argument, if tenable, would get round section 179 of the 1992 Act. However it seemed to us that if there were, once explained, an estoppel point which appeared at least potentially arguable, then, even if we otherwise allowed the appeal, and the Appellant succeeded on the issue of incorporation, it might perhaps be appropriate to remit that point. Hence when, after indicating that we were against him on his contractual submissions, we invited Mr Grobel to develop his submissions on estoppel, and it became apparent that they were not yet formulated, we suggested that he take time overnight to do so, which he did.[19]The case as thus at last formulated was as follows, after further consideration by Mr Grobel in the course of his submissions, namely that the issue is whether "it is unconscionable to permit the [Appellant] not to implement the minimum basic pay rates to which its authorised representatives agreed in July 1997, when by its defence of "invalid/unlawful agreement" it otherwise regarded itself as obliged to pay such rates."[20]When analysed, this amounts to the following series of propositions:(1) At the Tribunal hearing, the Appellant was represented by its employer body.(2) That employer body put forward on the Appellant's behalf (through Mr Lean - the consultant) as its lead defence, supported by evidence, the case that the agreements made in July 1997 referred to in paragraph 14 above were not valid, because the CECCB had ceased to exist ("Defence 1").(3) Mr Lean also put forward on the Appellant's behalf the defence that , whether or not the agreements were valid in July 1997, the three year rates were not incorporated ("Defence 2").(4) By running (and failing on – indeed to such an extent that it was not even dealt with by the Tribunal, and was not pursued before us) Defence 1, it is unconscionable for the Appellant to be running (no mention of estoppel, but we assume that, because this is called an estoppel point , it is sought to be asserted that the Appellant is estopped from running) Defence 2, which failed before the Tribunal and has succeeded before us.[21]This is in our view unarguable:(i) At best there could be the basis for an estoppel against the employer bodies from asserting a case that CECCB did not exist such that the agreements were reached in 1997 were not valid – but, if and insofar as pursued before the Tribunal, such case was not the subject matter of any part of the Employment Tribunal's decision and has certainly not been pursued by the Appellant before us. As can be seen from our conclusions, the issue, decided one way by the Tribunal and the other way by us, does not depend in any way upon whether the CECCB still existed in 1997, or whether the agreements between the employer bodies and the unions in 1997 were valid and enforceable, and indeed Marley makes it clear that the issue of whether individual employers and employees have incorporated a particular collective agreement does not depend upon whether such agreement was itself enforceable as between the parties to it.(ii) The fact that a lawyer – or consultant – or party runs two defences, and fails on the first, cannot of itself prevent or estop reliance on the second. There is nothing inconsistent, in this case, between putting forward a (hopeless because irrelevant) Defence 1 that the 1997 collective agreements were not valid and binding, with also running, as an alternative, an eventually successful Defence 2, that, whether or not the 1997 collective agreements were valid and binding, the material parts of those agreements which are relied upon were not incorporated in the relevant individual contracts of employment of the Applicant employees.(iii) None of the ingredients of estoppel – representation, conduct or convention, reliance, action to detriment or change of position – are even capable of being alleged, and are not alleged in the proposed issue to be remitted to the Employment Tribunal, for which we gave Mr Grobel the overnight opportunity.[22]We are satisfied accordingly that there is no arguable issue to consider in the so-called estoppel point and nothing therefore to contemplate remitting, even if it would otherwise have been appropriate to do so. Conclusion[23]We are satisfied that the Appellant has demonstrated error of law in the Tribunal's decision, that the Applicant employees failed to establish that there has been an unlawful deduction by the Appellant, and that the appeal should be allowed and the order of the Employment Tribunal quashed.