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

On an appeal on a point of law from an Employment Tribunal, the High Court cannot receive new evidence or conduct a fresh factual assessment. The statutory appeal is confined to questions of law arising from the Tribunal’s findings on the evidence before it.

For industrial training levy purposes, whether a business is mainly engaged in the construction industry is assessed by its activities, including the work performed and time spent by employees, rather than by turnover alone. The company appealing an assessment bears the burden of satisfying the Tribunal that it was not liable, or was liable for a smaller amount.

Bobcat Plant Hire (UK) Ltd appealed to the Administrative Court under section 11 of the Tribunal and Inquiries Act 1992 against an Employment Tribunal decision dismissing its appeal from an assessment notice issued by the Construction Industry Training Board.

The Board had assessed Bobcat to an industrial training levy. Bobcat contended that its principal activity was the sale of construction equipment and relied on the proportion of turnover attributable to plant hire. The Board applied an activities-based approach, considering the employees’ work and time. The central issues were the proper approach to determining whether the company was mainly engaged in the construction industry and whether the High Court could consider new factual material.

1. Appeal dismissed. The High Court’s jurisdiction under section 11 of the Tribunal and Inquiries Act 1992 was limited to questions of law arising from the Employment Tribunal’s determinations. The statutory appeal was not a de novo factual rehearing, and the court could not receive new evidence.
2. Under section 12(5) of the Industrial Training Act 1982, the appellant had to satisfy the Employment Tribunal that it was not liable to the levy, or liable only for a smaller amount. The Tribunal could receive evidence whether or not it had been before the Board and make its own factual findings, but the burden remained on the appellant.
3. The Board had correctly adopted an activities approach to deciding whether a company carrying on diverse operations was mainly engaged in the construction industry. The relevant Orders referred to the activities of the industry. The assessment therefore required examination of the activities undertaken and, where relevant, the employees engaged and the proportion of their working time devoted to those activities. Turnover could be relevant evidence, but did not determine the issue by itself.
4. The Employment Tribunal was entitled, on the material before it, to conclude that Bobcat had not discharged the burden of proof. The High Court could not revisit that factual conclusion.
5. The judge did not determine whether primary sales of construction equipment, sales of spare parts, or repair and maintenance connected with equipment sold to contractors fell within the relevant statutory provisions. Those questions required proper evidence and detailed factual findings in any future assessment.
6. Costs were summarily assessed at £3,750, exclusive of VAT.

The Employment Tribunal at Bristol dismissed Bobcat’s appeal from the Construction Industry Training Board’s levy assessment on 3 March 2003. The Administrative Court dismissed the statutory appeal on the issue of law and awarded costs of £3,750 exclusive of VAT.