Pubs Code Trusses Tied Tenants
Thursday 22nd December 2011
GMB ADVISE TIED PUB TENANTS TO BE
CAUTIOUS IN USING THE INDUSTRY PUB FRAMEWORK CODE OF PRACTISE (IFC)
WHEN INVOLVED IN DISPUTES WITH THE PUB OWNERS TO AVOID
DETRIMENT
Ed Davey is either a knave or a fool
as he assured tenants, when he decided to accept the BBPA voluntary
code, that the code would not have a detrimental effect on them
says GMB
GMB has issued advice to its members who are
pub tied tenants regarding the Industry Pub Framework Code of
Practise for Tied Lease and Tenant Pubs (IFC) which has been
incorporated into pubco codes and which has been issued to tied
tenants by various pubcos.
In letters to pub tenants pubcos are making
clear that if any tenant uses the code to make a complaint that in
doing this they will be deemed to have accept the code as legally
binding on them and be obliged to follow all its terms. In other
words if a tenant wishes to make a complaint regarding some breach
of the code by their pubco they are in effect changing the terms of
their leases.
Paul Maloney, GMB National Officer for pub
tied tenants said, “One pubco, Punch Taverns, has told GMB
members that all aspects of the code, about which they have had no
input what so ever in drawing up, is legally binding on any tenant
who uses any aspect of it to make a complaint against any
pubco.
Far from helping, the code could truss
up any tenant who uses it as the basis to make a complaint. A
letter from Punch Taverns to a GMB tied tenant makes this clear. If
a tenant uses one bit of the code they will be deemed to have
accepted all of the code which will be legally binding. In effect
they are agreeing to change the terms of their leases.
Ed Davey the BIS Minister assured
tenants, when he decided to accept the BBPA voluntary code, that
the code would not have a detrimental effect on them. Ed Davey is
either a knave or a fool.
GMB is advising its members to use
extreme caution in using this code and instead to rely on their
leases and the common law to enforce their rights. The reasons GMB
is giving this advice is that any benefit accruing to a tenant are
more than offset by having to accept clauses which will be
detrimental and onerous to the tenants. (see notes to editors
for examples of detrimental and onerous clauses in a pubco
code. ”
Ends
Contact: Dave Mountford, GMB
tied tenant on 07579 009660 or Paul Maloney 07801 343 839 or GMB
Press Office 07921 289880 or 07974 251823
Notes To Editors:
CODES
Examples from the Enterprise Inns code
l The foreword says it all really on the
top of the second page “Our new Code of Practice sets out our
commitments to you...” says Ted Tuppen
l The final paragraph on the same page
reads - “Both you and Enterprise Inns will be
required to sign a certificate to confirm
that the terms and conditions of the Code are fully understood and,
whilst your formal lease or tenancy agreement will always be the
legally binding proof of the contractual relationship between us,
this Code will have effect and may be relied upon by
both parties in any dispute.”
l additional onerous terms being
conveyed upon the tenant -
l e.g. 1 on assignment Enterprise will
withhold consent unless the proposed new tenant signs and agrees to
their code (page 3, para 3)
l e.g. 2 if an irregularity is
identified by the flow monitoring equipment (Brulines) then the
code obliges the tenant to hand over confidential trading
information to Enterprise Inns, guilty until proven innocent !, if
you refuse to comply and have signed the code, Enterprise Inns
reserve the right to recover damages in the form of a fine based on
the information provided by the flow monitoring equipment (page 14
para 1&2 – no such right exists in the lease and it has already
been established to the satisfaction of select committees that flow
monitoring information should not be relied upon
l this document is referred to as
legally binding “.......in the event of any dispute or
disagreement between us, we expect the content of this Code to be
taken into account by any mediator, review body, independent
expert, arbitrator or, .....the
Courts.”(Complaints and Disputes page 22 para 2).
The BII required that in the light of the latter codes
should contain advice requiring the tenant to seek legal advice
before signing any code – unsurprisingly Enterprises code contains
no such advice.
l Tenants are being pressed by BDM's to
sign the 'certificate' of acceptance in door to door window
salesman style. I have personal experience of this and Neil
Robertson was sat next to me when it happened ! I attach an email
thread that took place before hand leaving no confusion that we did
not intend signing any certificate
l If Codes are simply the landlords
commitment to their tenants then why the necessity for tenants to
sign it ?
One of the fundamental reasons for the
mediation collapse was that the proposed BBPA code framework sought
to convey further obligations upon the tenant – that was not the
intention of the select committees recommendations ;
“The BBPA (in conjunction with the BII and
FLVA) is developing a new industry
Code of Practice that will bring
real tangible benefits to both those entering into
new
agreements and existing
licensees. The revised Code will […] include
improved
transparency, better and more complete
information, better protection for
prospective tied pub operators and a more open
rent review process with
inexpensive and accessible redress in case of
dispute.” from BISC follow up report.”
The idea was to improve the relationship
between lessee and pub company and the BBPA framework code remains
practically identical to that proposed and refused by all the
genuine tenant representative bodies in mediation.