Bobcat Plant Hire (UK) Ltd, R (On the Application Of) v Construction Industry Training Board

Factual and Procedural Background

This opinion concerns an appeal by Company A from a decision of the Employment Tribunal dismissing its appeal against an assessment notice issued by the defendant Board, which determined that Company A was liable to an industrial training levy under the Industrial Training Act 1982. The Tribunal had found Company A liable based on its activities and wage bill size. Company A disputed that it was mainly engaged in the construction industry, arguing that its principal business was selling construction equipment rather than hiring or repairing it. The dispute arose following a visit by Board representatives to Company A's premises and subsequent assessment of its liability to the levy. Company A appealed to the Tribunal, which dismissed the appeal. Company A then exercised its right of appeal to the High Court on a point of law, challenging the Tribunal's decision. The appeal hearing considered whether the Tribunal's decision was legally correct, particularly with respect to the proper method of determining whether Company A was within the scope of the levy.

Legal Issues Presented

1. Whether the Employment Tribunal erred in law in its determination that Company A was liable to the industrial training levy.
2. Whether the correct approach to assess liability under the Industrial Training Act is based on the company's activities (employee time spent on construction-related activities) rather than turnover.
3. Whether the High Court could admit new evidence not presented before the Tribunal in considering the appeal.
4. Whether sales of construction equipment are activities within the scope of the construction industry for the purposes of the levy.

Arguments of the Parties

Appellant's Arguments

• Company A contended that it was principally engaged in selling construction equipment, not in hiring or repairing it, and therefore should not be liable for the levy based on the turnover approach.
• Company A submitted new evidence including statements from employees and marketing materials to support its position that sales predominated its business.
• Company A argued that the levy should be apportioned based on the proportion of turnover attributable to construction activities, specifically suggesting that only 14.5% of its turnover related to plant hire.

Respondent Board's Arguments

• The Board maintained that the correct method to assess liability is the activities approach, focusing on the number of employees or proportion of employee time engaged in construction-related activities rather than turnover.
• The Board argued that repair and maintenance activities fall within the construction industry and thus are subject to the levy.
• They contended that sales of construction equipment are not activities within the construction industry for levy purposes, except potentially sales of spare parts related to maintenance and repair.
• The Board opposed the admission of new evidence at the High Court appeal, emphasizing that the appeal was limited to points of law on the evidence before the Tribunal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the statutory scheme under the Industrial Training Act 1982 and relevant subordinate legislation defining the construction industry and levy liability. It emphasized that the burden of proof lies on the appellant to show it is not liable or should pay a reduced levy. The court confirmed that the Employment Tribunal's role is to determine questions of fact based on evidence before it, and the High Court's jurisdiction on appeal is limited to points of law arising from those factual determinations.

The court rejected the appellant's attempt to introduce new evidence at the appeal stage, clarifying that the High Court is not a forum for fresh fact-finding. It accepted the Board's activities approach as consistent with the legislation and established case law, rather than the appellant's turnover approach.

Applying the activities approach, the court found that the Tribunal was entitled to conclude that Company A's activities predominantly fell within the construction industry, specifically through hire, repair, and maintenance of plant, which are construction activities under the relevant Orders. The appellant failed to provide sufficient evidence to rebut this conclusion or to demonstrate that sales predominated its business.

The court noted the complexity of whether sales of spare parts or repair-related sales might fall within the levy’s scope but declined to resolve that issue without proper evidence and findings of fact. The court reaffirmed that the appellant has opportunities to present such evidence in future proceedings.

On costs, the court considered proportionality, reduced the costs award to exclude VAT, and made a summary assessment awarding a significant part of the Board's costs.

Holding and Implications

DISMISSED

The appeal was dismissed for failure to raise any issue of law arising from the Employment Tribunal’s factual findings. The court upheld the activities approach as the correct method to determine levy liability under the Industrial Training Act and its Orders. The appellant did not discharge the burden of proof to show it was outside the scope of the levy. The decision confirms that appeals to the High Court on such matters are limited to points of law and that fresh evidence cannot be admitted at that stage. The court made a costs award in favor of the Board, reflecting the reasonableness of its representation and the limited scope of the appeal. No new legal precedent was established beyond affirming existing principles and procedural limits on appeals.