On Line Design & Engineering Ltd v Engineering Construction Industry Training Board [2013] EWHC 287 (Admin)

[2013] EWHC 287 (Admin)Case No CO/1299/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/02/2013
Before
THE HON. MR JUSTICE EDWARDS-STUART
Between
On Line Design & Engineering LtdAppellantEngineering Construction Industry Training BoardRespondent
Richard Davison (instructed by Bridge McFarland) for AppellantDale Martin (instructed by Shoosmiths) for RespondentHearing Hearing dates: 18 th January 2013
Judgment

Introduction

[1]This is an appeal from a judgment of an Employment Tribunal (ET) sitting at Watford. The case before the ET was itself an appeal from the determination of the Respondent (“the Board”). The appeal is about the industrial training levy charged by the Board, and specifically whether that levy should be charged to the appellant at 1.5% of the emoluments of its employees or the lower rate of 0.18%.[2]The levy in dispute is payable under The Industrial Training Levy (Engineering Construction Industry Training Board) Orders 2009. The Appellant is liable to pay the levy on the basis that it was wholly or mainly engaged in the engineering construction industry.[3]The levy is payable at the higher rate on those employees who are “site employees” as defined in the Orders.[4]The Appellant provides engineering design and consultancy services to its clients. The service is provided both from its own premises and by supplying employees who work at clients’ premises. It contends that the overwhelming majority of its employees who work at clients’ premises are doing planning and design work at a desk in an office and are not “site employees”.[5]The Board contends that all the employees in question work at sites where the defined engineering activities are carried on and so they are site employees with the result that the Appellant must pay the levy at the higher rate. The ET correctly set out the issue before them in the following terms:
“. . . whether the respondent board was correct in determining that the appellant’s agency and consultancy staff placed at locations owned or managed by the appellant’s clients and, for the most part based in an office environment, can be said to be working at a site where engineering construction activities are carried on, as defined in the relevant statutory provision.”
[6]The central issue on the appeal is: what is the “site” at which the Appellant’s employees are working? The Board submits that it is the site of the relevant establishment, for example an oil refinery, whereas the Appellant submits that it would be the office on that refinery in which those employees spend most of their time.

The hearing before the ET

[7]There were 17 witness statements before the ET: 14 on behalf of the Appellant and 3 on behalf of the Board. All but one of the witnesses gave evidence. The tribunal spent a day touring 15 establishments where the Appellant’s employees worked and had large scale aerial photographs and maps of them. In addition, it had schedules showing the people who were based at the various locations and what they did. The following paragraphs contain a brief summary of some of the facts found by the ET.[8]The various establishments took different forms. Some were on a readily identifiable site, almost invariably contained within a perimeter fence. One was on a very large site - 6 square miles - that was largely unfenced and had a public road and railway lines running through it. On most of these sites the Appellant’s employees worked in an office building within the perimeter fence. The offices were varying distances from the nearest plant - in one case, Cristal Global, a photograph showed that there were pipelines running alongside the building. One establishment was served by an office that was some 16 miles away: in that case the Board accepted that the employees working in that office were not site employees.[9]The Appellant’s employees generally worked in small teams with employees of the client. All the employees who gave evidence, save one, said that their work was best carried out at the client’s location. A few of them said that their work could not be done unless they were at the client’s location. Almost all of them worked in office blocks where there were other teams of people carrying out activities related to engineering construction (including, according to the ET, “other discipline engineers, site supervisors, security people etc”). One obvious advantage of working at the client’s establishment would be the availability of relevant information - including, for example, documents and engineering drawings.[10]The Appellant’s employees were not concerned with the operation of any plant at the client’s establishment, except to the extent that they were involved in making design improvements to the process. However, many of them visited the operational plant at the establishment where they worked on a daily or a weekly basis.

The relevant statutory provisions

[11]Schedule 1 of the Industrial Training (Engineering Construction Board) Order 1991 defines the activities of the Engineering Construction Industry as:
“(a) the activities of— (i) fabrication, assembly, construction, erection, installation, fitting, testing, inspection, maintenance, repair, replacement or dismantling on site of any chemical, electrical or mechanical apparatus, machinery or plant of a chemical works, gas making or gas treatment works, nuclear or thermal power station, nuclear waste reprocessing site, hydro-electric station, oil refinery or oil terminal or other apparatus, machinery or plant concerned with exploration for or exploitation of oil or gas, metal smelter, steel mill, paper mill or brewery, the processing and production of human and animal food, pharmaceutical, cosmetic and petrochemical products, cement, concrete bricks, distilling alcohol or other products, glass, paper and sewerage or any other installation involving processing of any product; (ii) planning, designing, commissioning or procuring by way of contract or otherwise of any apparatus, machinery or plant mentioned in head (i) above carried on in association with any activity mentioned in that head or in association with any project for such an activity; (iii) supervision of the fabrication, assembly, construction, erection, installation, fitting, testing, inspection, maintenance, repair, replacement or dismantling of any apparatus, machinery or plant mentioned in head (i) above when carried out on site; (iv) the erection and/or dismantling of the main framework of buildings, being framework of steel or other metallic construction, or of other structures consisting wholly or mainly of steel and/or other metal, not being either structures forming part of a building, electric lines or structures designed for the support thereof, walls, fencing, hoardings, exhibition stands, scaffolding or contractors' plant;” (i) fabrication, assembly, construction, erection, installation, fitting, testing, inspection, maintenance, repair, replacement or dismantling on site of any chemical, electrical or mechanical apparatus, machinery or plant of a chemical works, gas making or gas treatment works, nuclear or thermal power station, nuclear waste reprocessing site, hydro-electric station, oil refinery or oil terminal or other apparatus, machinery or plant concerned with exploration for or exploitation of oil or gas, metal smelter, steel mill, paper mill or brewery, the processing and production of human and animal food, pharmaceutical, cosmetic and petrochemical products, cement, concrete bricks, distilling alcohol or other products, glass, paper and sewerage or any other installation involving processing of any product; (ii) planning, designing, commissioning or procuring by way of contract or otherwise of any apparatus, machinery or plant mentioned in head (i) above carried on in association with any activity mentioned in that head or in association with any project for such an activity; (iii) supervision of the fabrication, assembly, construction, erection, installation, fitting, testing, inspection, maintenance, repair, replacement or dismantling of any apparatus, machinery or plant mentioned in head (i) above when carried out on site; (iv) the erection and/or dismantling of the main framework of buildings, being framework of steel or other metallic construction, or of other structures consisting wholly or mainly of steel and/or other metal, not being either structures forming part of a building, electric lines or structures designed for the support thereof, walls, fencing, hoardings, exhibition stands, scaffolding or contractors' plant;”
[12]The definition of site employee in The Industrial Training Levy (Engineering Construction Industry Training Board) Order 2009 is as follows:
“‘Site employee’ means an employee … the activities of whose employment take place wholly or mainly at a site where activities falling under paragraph 1(a)(i), (iii) or (iv) of Schedule 1 to the Industrial Training Order are carried on.”
[13]I observe that, of the activities described in sub-paragraphs (i), (iii) and (iv), all of them, except (to a limited extent) maintenance and testing of machinery or plant, are not ones that could be carried out within an office. So far as maintenance or testing are concerned, I can see that some aspects of those activities, such as completing records of inspections and so on, could be carried out within an office, but most of it has to be done on the ground. I am not aware that there was any evidence before the ET that suggested that any of the Appellant’s employees shared an office with the client’s maintenance staff, and it seems inherently unlikely that they would have done.[14]It is to be noted also that the design and procurement work in (ii), which is the work that was being done by the Appellant’s employees, was, by definition, work that was “carried on in association with any activity mentioned in that head or in association with any project for such an activity”. Accordingly, there was a link between that work and the work in (i).[15]Mr Dale Martin, who appeared for the Board, drew my attention to paragraph 7.8 of the Explanatory Memorandum that was placed before Parliament by the Department for Business Innovation and Science prior to enactment of the[16]I was reminded by both counsel of some of the authorities dealing with the proper approach of an appellate court to the decisions of employment tribunals. First, an appeal lies to this court on a point of law only: see CPR Rule 52.19(1). In this case, it is in fact a second appeal because the dispute has already been determined both by the Board and the ET.[17]Mr Martin submitted that the court should be extremely wary of any attempt to re-open any of the facts found by the ET or indeed any of the impressions formed by the ET based on those facts. He said that judicial statements of caution in that regard abound in the employment tribunal context. For example, in Elmbridge Housing Trust v O’Donoghue [2004] EWCA Civ 939, Mance LJ (as he then was) said, at paragraph 44, that judgments of employment tribunals: “should be read generously and not overturned merely because of infelicitous or inappropriate statements which were, looking at the matter in the round, of an inessential nature”.[18]More recently, in Fuller v. London Borough of Brent [2011] ICR 806, Mummery LJ said this:
“The employment tribunal judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of an employment tribunal decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focussing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid.”
[19]Further, Mr Martin said that the Court of Appeal has repeatedly stressed that so long as the ET has directed itself properly and fairly on the facts, and has not gone wrong in law, the Court should not interfere even if it is considered that the Court may have come to a different conclusion. In addition, it must take care “to avoid concluding that an experienced [employment] tribunal by not expressly mentioning some point or breach has overlooked it” (see: Retarded Children’s Society Ltd v Day [1978] ICR 437).[20]Finally, with reference to this particular case, Mr Martin submitted that the ET was uniquely well-placed to determine the facts of the dispute, quite apart from its composition and industrial experience, because of the extensive material that was put before it, as I have already described.[21]Mr Martin also drew my attention to authorities on the approach to legislation of this sort. He submitted that the purpose of the Order is to provide for appropriate training in relation to a particular industry under the control or supervision of those with particular knowledge and experience of that industry and, most importantly for present purposes, to impose a scheme on relevant employers to pay for that specialist training.[22]He referred to the following observations of Lord Wilberforce in EITC v Foster Wheeler John Brown Boilers Ltd [1970] 1 WLR 881, at 886 A-C:
“This instrument …, like others in the same field, raises questions of construction of a special and difficult character. It endeavours to bring within it general expressions and definitions, which are rather fluid and loose in texture, types of industry and industrial activity of a varied and complex character which can seldom be accurately brought within any of them. In this respect it rather resembles legislation concerning the selective employment tax. The great variety of combinations which are dealt with can be seen by a glance at the Order itself and its various paragraphs and the tables, and I need not expand upon them. So when one is trying to interpret an order like this the processes of strict analysis are seldom conclusive and indeed they often lead to confusion. The answer tends to depend much more on what one may call impression – certainly a cultivated and experienced impression; but still impression; and that is why they are committed in the first instance to an industrial tribunal; and that is why respect has to be paid to the findings of this body.”
And, in the same case, Mr Martin referred me to the following remarks by Phillimore LJ, at 888E-F:
“As my Lord has said, this is to a great extent a matter of impression and a matter for the informed judgment of those accustomed to the expressions used to describe categories of industrial activities; and indeed this case demonstrates yet again how careful an appellate court should be before it disturbs the decisions of this particular tribunal .”
[23]Both Mr Martin and Mr Richard Davison, who appeared for the Appellant, referred me to Newman J’s summary of the authorities in Mark Wilkinson Furniture Ltd v Construction Industry Training Board (10 October 2000, The Times), which was in the following terms:
“In my judgment the cases establish: (1) that the appropriate process of interpretation should involve, and largely depends upon, "a cultivated and experienced impression"; (2) that an appellate court should proceed with care before disturbing the decision of the experienced Board to which Parliament has committed the decision; (3) that the process of interpretation should recognise the purpose of the legislation comprises "an endeavour ... to bring within general expressions and definitions which are rather fluid and loose in texture types of industry and industrial activity of a varied and complex character"; (4) that the scheme of the legislation has been designed with care so as to separate industrial activities and ensure that the relevant activity falls within the scope of only one statutory instrument and liability for assessment for levy according to one instrument. (5) that if there is an ambiguity the interpretation should not be strained against the taxpayer.”
[24]This summary was adopted by Ouseley J in the Appellant’s last appeal to this court, a decision that I discuss in the next section of this judgment.

The decision of Ouseley J in On Line Design v ECITB [2010] EWHC 2776 (Admin)

[25]In this case Ouseley J dismissed an appeal by the Appellant raising the same issues in respect of the preceding two years (2007 and 2008) on the ground that it had failed to discharge the burden of proof. However, he did make some obiter observations on the question of what was meant by the word “site” as used in the Order. At paragraphs 33-37 he said this:
“33. … This particular issue only arises where the employee is undertaking only paragraph 1(a)(ii) work in offices in or near a larger installation where paragraph 1(a)(i), (iii) and (iv) work is being carried on by someone, whether an employee of the client or an employee of the agency. The question of whether the site where the employee carries out his activities is a site where activities in 1(a)(i), (iii) and (iv) are also carried out obviously depends on how the meaning and application of site is approached. The hallmark of the right approach should be a purposive and common sense approach, not one of technicality and rigidity. An informed impression is a good way of describing this task, though it is not quite an issue of interpretation but rather a question of recognising that there are a wide variety of circumstances in which the word may come to be applied and that that may not permit always satisfyingly logical or wholly consistent answers. 34. I would be very reluctant to accept as correct in law the adopting of any hard and fast rules for setting out how the application of the word “site” to a set of facts should be approached. I point out, however, that the higher levy indicates a greater need for benefit from the safety and skills training provided by the Training Board. Office workers carrying out 1(a)(ii) work in a leviable establishment, as at the appellant's own base, are levied at the lower rate, as would be agency staff carrying out work in offices remote from the site where paragraph 1(a)(i), (iii) and (iv) engineering construction activities were carried on. That accepted legislative structure and its consequences suggests - I put it no higher - that a purposive approach to the definition of site and off site employee, and hence site within the definition of site employee for whom the higher rate applies, is better met by considering the physical separation or intermingling of the office, where no engineering construction activities within 1(a)(i), (iii) and (iv) are carried on, from an area where those activities themselves are actually carried on and where the greater danger lies and where the need for greater training lies, rather than by treating what may obviously be one industrial complex or development as the engineering construction activity site when deciding whether the higher levy is payable. However, in any given case it may be appropriate to describe the whole area of industrial activity, including offices in its midst, as the site, or to do so even where the offices are separated by road or fences from that larger area. 35. But I would not adopt, on the other hand, the suggestion that the security fence to the whole installation must inevitably be the boundary of the engineering construction activity site, regardless of the nature of any internal separation. 36. I urge caution in respect of any test requiring remoteness or significant geographical distance, even up to kilometres, before a site where any (a)(ii) work is carried on can be differentiated from a site where 1(a)(i), (iii) and (iv) activities are carried on. Distance may be relevant but requiring remoteness is likely to be heading for error. Equally, it is unrealistic to treat only the area cordoned off for safety during actual engineering construction activities as the area capable of being an engineering construction site. In some cases it may be so but it is not always and inevitably so, in my judgment. 37. So, offices on or near a larger installation may or may not be a site or the same as a larger site where engineering construction activities are carried on. A conclusion will require an examination of the facts and the location in relation to the wider installation where engineering construction activities in 1(a)(i), (iii) and (iv) are carried on.”
[26]One point needs to be made at the outset about these observations. Ouseley J’s comment that a “higher levy indicates a greater need for benefit from the safety and skills training provided by the Training Board” is not supported by the evidence that was before the ET in this case. The ET was told by Mr Hill, of the Board, that the original rationale for the two levy rates was based on the view that an employer’s head office was likely to be a more stable environment in terms of the turnover of employees, whereas on site activity was more sporadic and was driven principally by the availability of engineering construction work, which in turn depended on economic conditions. Because of the unpredictability and itinerant nature of site work there was a much higher degree of turnover in the workforce with a consequent increase in the need for training, particularly of apprentices, as compared with that of head office staff. I do not know what evidence Ouseley J had in mind when he made his remarks, but obviously he could not have known of the evidence that was to be given to the ET in this case.[27]I consider, therefore, that Ouseley J’s views in paragraph 34 of his judgment on what would constitute a purposive approach to the definition of site and off site employees cannot be applied without modification to the issues in this case. He may even have had some doubts in his own mind about the rationale for the two tier levy, which may explain his concern to emphasise that he was only making a suggestion. Nevertheless, Mr Martin understandably relied on Ouseley J’s final sentence in paragraph 34.[28]It is also worth noting the submission that was made to Ouseley J on behalf of the Appellant. It was submitted that the client’s “office premises” were not a site where engineering construction activities were carried out and that it was irrelevant that those office premises might be within or next to a very large industrial installation, where inevitably some work falling within sub-paragraphs 1(a)(i), (iii) and (iv) of Schedule 1 to the 1991 Order would always be being carried out. The Appellant’s case was that the “site” for these purposes was the controlled (or “hard hat”) area where the relevant engineering construction activities were carried out.[29]Ouseley J’s judgment was considered with some care by the ET, and the Appellant’s closing submissions to the ET were based squarely on it. The Appellant submitted that there were no hard and fast rules as to what was a site for the employees based in an office, but there were three important pointers. First, the degree of separation from the sub-paragraph 1(a)(i), (iii) and (iv) engineering construction activities. Second, the degree of organisational separation from those activities. Third, the degree to which the activities of the office are intermingled with those activities. The ET said that it could see “little or no difference” between the Appellant’s second and third pointers. Having regard to the defined connection between the sub-paragraph (ii) activities and the sub-paragraph (i) activities that I have already mentioned, I agree. The submissions of the parties on the principal grounds The case for the Appellant

The submissions of the parties on the principal grounds

[30]In this appeal Mr Davison submitted that the relevant “site” was not simply the client’s “office premises”, but just the part of it - perhaps only a couple of rooms - that was occupied by the Appellant’s employees. I suspect that there were probably two factors that left him with little alternative but to adopt this position. First, the larger the “site”, the greater the chance that there might be someone within it who was involved in, for example, maintenance work falling within sub-paragraph 1(a)(i). If that was the case, then the Appellant would be subject to levy at the higher rate.[31]The second factor is the sheer impracticability for the Appellant of having to show who else was working in the client’s office premises at the relevant time and that none of them was involved in an activity falling within sub-paragraph 1(a)(i), (iii) or (iv). Whilst it would be relatively easy to establish who had been working in the same room or rooms as the Appellant’s employees, to establish this in respect of a whole office building would be quite another thing. The Appellant would have to know this in order to be able to complete the annual return giving the number of site employees, as well as having the burden of proving it in any appeal.[32]I detected a possible shift in the Appellant’s position on this point from the stance that it had taken before the ET. The impression that I have from reading the ET’s judgment as a whole is that the inquiry as to what was the site was directed more to whole office buildings at the particular locations, rather than particular parts of those buildings, but this is not completely clear. At one point towards the end of its judgment the ET commented that “it remained a mystery” to it what the Appellant was saying could be a site within the definition if it was not the whole site occupied by the relevant establishment.[33]Mr Davison submitted that, at its lowest, the meaning of the word site in the context of the statutory scheme was ambiguous and that that ambiguity should be resolved in favour of the Appellant. In support of this submission, he referred me to the observation of Kenneth Parker QC, sitting as a Deputy High Court Judge, in Daniel Contractors Ltd v The Construction Industry Training Board [2007] EWHC 2848 (Admin), [9]:
“The foregoing guidance from such an eminent authority [Lord Wilberforce in Foster Wheeler] requires only one rider. The levy is in the nature of a tax. The levy, therefore, should not be imposed unless that was the clear and unequivocal effect of the statutory provision, and any ambiguity should be resolved in favour of the company on whom the levy is imposed.”
[34]He criticised the ET’s first conclusion, which was that the fact that engineering construction activities were carried on at all the locations in question was a “serious difficulty” for the Appellant. The ET found that the offices were mostly within a perimeter fence and many were not further than a few hundred metres from operating plants and then said that “Looking at the evidence and adopting a common sense and impressionist approach, our conclusion is that these are “sites” within the definition”. The ET concluded that that was enough to decide the case.[35]Mr Davison effectively submitted that the ET had begged the question because this conclusion really amounted to nothing more than a restatement of the problem. Alternatively, it amounted to the application of a “perimeter” test - an approach that was at variance with the observations of Ouseley J.[36]Mr Davison’s second criticism of the ET’s second conclusion - that any physical separation was “relatively minor” - was that it mixed up integration with the client’s business and integration with engineering construction activities that formed part of that business. He summarised the factors that were considered and relied on by the ET as follows:(1) The Appellant’s staff worked in mixed teams with client staff and reported directly or indirectly to a member of the client’s staff.(2) All or nearly all of them said that their work was best carried out at the client’s location. Some said it could only be carried out at that location.(3) “Almost all of them worked in office blocks where there were other teams of people carrying out activities related to engineering construction. These included other discipline engineers, site supervisors, security people etc”.(4) A great many visited the operational plant on a daily or weekly basis.(5) “On the evidence before us the clients appear to have requested that the appellant place staff at their locations as engineering construction activities are taking place there. The appellant’s staff are not involved with the particular process of the plant, except to assist with improving the process by engineering construction projects”.[37]Mr Davison submitted that the categories of staff in the ET’s third factor were not related to what he called “metal-bashing” engineering construction activities, and so the conclusion did not follow from the premise. He submitted also that a further problem with the second conclusion is that the reasoning in support of it would apply with equal force to those locations which the respondent conceded were not sites.[38]More generally, Mr Davison submitted that the ET had adopted a narrow approach to the appeal more along the lines a judicial review, rather than the rehearing that it was required to carry out. In support of this submission he relied on a sentence in the final paragraph of the ET’s judgment, where it said that the Appellant had failed to satisfy them that “the board’s approach has been misguided in any way”. I can dispose of this submission at once.[39]The ET’s summary of its conclusion on the issue before it (“the respondent board was correct . . .”) shows that it was reaching its own conclusion on the issue, and not simply considering whether or not the Board’s conclusion was one that it could properly reach. This is consistent with the ET’s summary of the questions before it at paragraph 9 of its judgment:
“Is it more likely than not that the levy has been properly imposed and calculated correctly?”
. In my judgment there is nothing in this point.

The case for the Board

[40]Mr Martin submitted that the word “site” is one that is clearly understood in the engineering construction industry and there is no warrant for giving it an artificial meaning. It should be given the meaning that would be given to it by the reasonable engineer and those who have to implement the scheme on a day to day basis.[41]He said that it would be absurd to describe the office building standing in the middle of, say, the Global Cristal complex as being anything other than an office building on the site. Those who worked in it were working on the site, just like those who carried out engineering construction operations on the adjacent plant. He submitted that there was a range of factual situations. An oil rig was at one end of the spectrum and the arrangements at Centrica (Hedon) - where the administration building in which the Appellant’s employees worked was 16 miles away from the site which included the plant - were at the other. He referred to and relied on the ET’s findings that the ordinary industrial usage “is to refer to the client’s locations as visited by us and seen on the maps [ as] ‘sites’” and that there were many contemporaneous documents in which the Appellant had itself used the word in this way. He reminded me of the decision of the Court of Appeal in Jenner v Allen West [1959] 1 WLR 554, in which Pearce LJ said that a tribunal should look at the trade meaning of a term and attach significance to it (at page 562). Lord Evershed MR made observations to similar effect (at page 567).[42]But Mr Martin relied on Ouseley J’s observation (at paragraph 17 of his judgment) that courts should be careful before disturbing the meaning derived from the informed impression of a specialist tribunal. In the same paragraph Ouseley J also said that:
“. . . in an error of law jurisdiction, if a phrase is properly construed and understood, the question of fact and degree in its application is a question for the final decision maker. It is only where that decision on fact and degree can be shown to involve some error of law, for example an irrational judgment or that the evidence has been misunderstood or ignored, that its decision will be overturned.”
[43]By contrast, he pointed out (as I have already mentioned) that Ouseley’s J’s suggested purposive approach was based on assumptions about the levy that were not consistent with the evidence before the ET. However he relied on Ouseley J’s formulation of the relevant questions, namely:(1) Which is the site where the activities of the employee wholly or mainly take place?(2) Is that a site where paragraph 1(a)(i)(iii) and (iv) activities are carried on?

Other grounds

[44]It was also suggested that the ET did not give adequate reasons for their conclusions (Ground 2). Mr Davison submitted that the reasoning of paragraph 18 of the judgment was obscure. Paragraph 18 was in the following terms:
“We therefore move on to consider whether that location can be a “site where paragraph 1(a)(i), (iii) and (iv) activities are carried on”
. There is a serious difficulty for the appellant in this case. Even their own evidence is that these locations, which we visited, and which we have looked at now in considerable detail over the course of some days are locations where engineering construction activities are carried on. We have seen the offices, we have seen that, for the most part they are within a perimeter fence and that many of them are not further than a few hundred metres from operating plants. It is irrelevant whether that is the operating plant which any individual working in the office needs to visit because that is not the test set out in the definition. Looking at the evidence and adopting a common sense and impressionistic approach, our conclusion is that these are “sites” within the definition.”[45]However, this paragraph cannot be read in isolation. It needs to be read in the light of what went before it, in particular paragraph 16 where the ET said this:
“The appellant accepts that the locations with which we are now concerned, the respondent having conceded those at a distance removed such as Centrica Hedon, are engineering construction sites. Its case seems to be that we should exclude the offices in which their staff were placed on those locations.”
[46]When it is read in context, it seems to me that paragraph 18 is reasonably clear: it is rejecting the submission that the offices, although for the most part situated within the perimeter fence of the establishment, are, somehow, “sites” within sites.[47]Ground 5 was based on the fact that in paragraph 7.3 of the Reasons the ET said that one witness, a Mr Les Pike, has said that the Appellant’s employees “were involved in both repair and maintenance”. However, I understood Mr Davison to accept what the Board said about this evidence at paragraph 21 of its Grounds, and so this point really fell away.

Discussion and conclusions

[48]I accept Mr Martin’s submission that in the context of this dispute the word “site” must be construed in a manner that accords with how it would be understood in the industry.[49]I can find no error of law in the conclusion set out at paragraph 18 of the ET’s judgment (set out in paragraph 44 above). I do not consider that the ET was adopting a strict “perimeter fence” approach, although it may well have taken that as its starting point. I agree with Ouseley J that there is no “bright line” solution to the question of where a particular site begins or ends: it is really a matter of impression. The authorities show that an impressionistic approach to problems of this sort is entirely appropriate. That was the approach adopted by the ET on a site by site basis.[50]I can discern no ambiguity in the meaning of “site” as construed by the ET. It may be that there will be borderline cases when the answer to the question of whether a person is or is not a site employee, but that does not mean that there is an ambiguity.[51]The Appellant’s case that the site where their employees work is the room or rooms in an office building situated on the client’s premises in which they work seems to me to require giving the word “site” a meaning that it does not ordinarily bear, and certainly not in the language spoken by those who work in the engineering construction industry.[52]Further, and somewhat quixotically, the Appellant is effectively applying a “bright line” approach to the question which is an approach that it itself professes not to embrace. Once it is asserted that the four walls, floor and ceiling of the office (or offices) in which its employees work define the site, the criteria contended for by the Appellant, such as the degree of integration of the Appellant’s employees with others or the nature and extent of the physical separation between those employees and the operating plant, become irrelevant.[53]This underlying mismatch between the criteria that the Appellant submits should be applied, and the result to which it is said they lead, in my judgment reveals the fallacy that undermines the Appellant’s case.[54]I consider that the ET was entitled to make the findings of fact that it did and that its conclusions as to what constituted the relevant site are unassailable in the light of those findings.[55]For these reasons this appeal must be dismissed.

Afterword

[56]I can well understand why the Appellant feels aggrieved by the manner in which the levy is applied to its employees. However, that is the consequence of the industry scheme, which to some extent (and no doubt for reasons of simplicity in operation) involves a “one size fits all” approach. Unfortunately, the atypical nature of the Appellant’s business means that it happens to be of a “size” which the scheme does not fit comfortably. But the remedy for this is not to strain the language of the scheme in order to accommodate the Appellant.[57]It was submitted, probably correctly, that if the interpretation contended for by the Appellant was to be accepted, the ramifications for the whole scheme would be very wide ranging. However, I should make it clear that that is not a consideration that has played any part in the conclusion that I have reached.

Order

“In deciding whether workers should be classed as “site” or “off-site” employees for the purposes of levy assessment, the key consideration is whether they work wholly or mainly at a place where certain activities (which are defined in the Board’s founding legislation) are carried on. For example, the activities of fabrication, assembly, construction, erection or installation of any chemical, electrical or mechanical apparatus, machinery or plant of a chemical works etc. If this is the case, they would be classed as “site” employees. People engaged in occupations such as planning or design could also be classed as “site” employees if they work wholly or mainly at a site where such activities take place. All other employees are classed as “off-site” employees for the purposes of this order.” The approach indicated by this memorandum does not sit easily with the Appellant’s contention that an office building that is situated on or in fairly close proximity to a place where the relevant engineering construction activities are carried out would be a separate site. The authorities