On Line Design & Engineering Ltd v Engineering Construction Industry Training Board

In the engineering construction industry levy scheme, “site” is construed according to ordinary industry understanding and by an informed, impressionistic assessment of the facts. There is no bright-line rule that an office within an industrial establishment is a separate site, nor that a perimeter fence invariably defines the boundary. The question is whether the employee works wholly or mainly at a site where the specified engineering construction activities are carried on. Borderline factual outcomes do not create statutory ambiguity. An appellate court should respect the specialist tribunal’s factual findings and informed impression unless an error of law is shown.

The appellant provided engineering design and consultancy services and supplied employees to work at clients’ industrial establishments. The respondent Board assessed the employees at the higher levy rate applicable to “site employees” under the Industrial Training Levy (Engineering Construction Industry Training Board) Order 2009. The Employment Tribunal upheld the assessment. The appellant argued that its employees worked at separate office sites, or even in particular rooms, rather than at the wider industrial sites where engineering construction activities occurred. The appeal concerned the meaning of “site”, the proper appellate approach to the Tribunal’s decision, and whether the Tribunal had given adequate reasons.

1. Appeal dismissed. The Employment Tribunal had correctly determined that the relevant locations were sites where engineering construction activities were carried on.
2. Under the definition of “site employee” in the Industrial Training Levy (Engineering Construction Industry Training Board) Order 2009, the relevant questions are where the employee’s activities take place wholly or mainly, and whether that is a site where activities within paragraphs 1(a)(i), (iii) or (iv) of Schedule 1 to the Industrial Training (Engineering Construction Board) Order 1991 are carried on.
3. The word “site” must be construed in accordance with its meaning in the engineering construction industry. Its application is a matter of informed impression, assessed site by site. There is no bright-line solution. A perimeter fence may be a relevant starting point, but it does not inevitably define the site’s boundary. Conversely, an office cannot be treated as a separate site merely because the employees work within its rooms.
4. The Tribunal was entitled to consider the location of the offices, their physical and organisational relationship with the industrial establishments, the work carried out there, and the evidence that the locations were ordinarily understood in the industry as sites. The Tribunal’s conclusion was not a strict perimeter-fence test and disclosed no error of law.
5. The statutory language was not ambiguous. The fact that the scheme may operate as a poor fit for an atypical business, or that another interpretation might have wide practical ramifications, could not justify straining the language of the scheme.

The judgment states that the appeal was from an Employment Tribunal decision upholding the respondent Board’s levy determination. The appeal was a second appeal because the dispute had already been determined by the Board and the Employment Tribunal.

• High Court (Administrative Court): appeal dismissed.