Construction Industry Training Board, R (on the application of) v Scalegold Joinery Ltd

Under the construction industry levy scheme, activities must first fall within paragraph 1 of the Schedule to the Scope Order before the exclusions in paragraph 2 are considered. The provisions are not in conflict. Off-site manufacture and subsequent installation by another person do not, without express statutory wording, exclude an activity from paragraph 1.

The exclusion for automated manufacture requires more than the use of labour-saving tools. The question is whether the products are fairly described as produced by machines, rather than made by skilled craftsmen using machine tools. On an appeal limited to law, a tribunal’s decision should be read fairly and not examined with excessive technicality.

The Construction Industry Training Board assessed Scalegold Joinery Ltd for an industrial training levy. Scalegold appealed, arguing that its bespoke joinery manufacturing was outside the construction industry because it was carried out off-site and its products were later installed by others.

The Employment Tribunal allowed the appeal, finding that the business fell within the exclusion for automated off-site manufacture of timber building products. The CITB appealed on points of law, arguing that the Tribunal had misunderstood the relationship between the inclusion and exclusion provisions and had failed to address automation adequately. The central issue was whether the Tribunal’s decision could fairly be read as containing a finding that the activity was automated.

1. The appeal was dismissed. The Tribunal’s decision could fairly be read as finding that Scalegold’s activities were automated, and there was factual material capable of supporting that conclusion.
2. Paragraph 1 of the Schedule to the Industrial Training (Construction Board) Order 1964 identifies activities within the construction industry. Paragraph 2 provides exceptions to that scope. Paragraph 1(c)(ii) and paragraph 2(c)(xx) therefore do not conflict; paragraph 2 only falls to be considered if paragraph 1 applies.
3. There was no basis for implying that paragraph 1(c) excluded manufacture merely because it occurred off-site. Nor was installation by another person a relevant condition. The legislation expressly referred to on-site work in some provisions but not in paragraph 1(c).
4. The mere use of labour-saving or time-saving machinery does not make an activity automated. The relevant distinction is between products produced by machines and products made by skilled craftsmen using machine tools. The latter description does not necessarily satisfy paragraph 2(c)(xx).
5. Although the Tribunal’s reasoning could have been expressed more clearly, its decision was to be read fairly rather than examined with excessive technicality. The court declined to interfere because the Tribunal had reached the necessary mixed question of fact and law on an evidential basis.
6. The court rejected the Tribunal’s wider reasoning concerning an alleged conflict between the provisions and the relevance of subsequent installation. Permission to appeal was refused.

1. Employment Tribunal: set aside the estimated industrial training levy and allowed Scalegold’s appeal.
2. Employment Appeal Tribunal: the judgment states that an appeal was made pursuant to Article 9 of the Industrial Training Levy (Construction Board) Order 2003.
3. High Court (Administrative Court): dismissed the further appeal on a point of law.