“Self-Regulation”…The Phrase No-one Can Trust

Well we all know what happened when the banks were left to ‘self regulate’ but you may not be aware that our pub industry has the same problem – the large pub owning companies – pubcos – have been allowed to self regulate and have been using a body called PICAS – Pubs Independent Conciliation and Arbitration Service – to ‘arbitrate’ in cases where tied lessees feel they have been wrongly treated by their ‘pubco partners’.  Last week saw the Chairman of The British Institute of Innkeeping (BII), Bernard Brindley, take to the Publican Morning Advertiser (PMA) accusing PICAS users of “trying to discredit the service” by speaking about their experiences to Minister Jo Swinson.

Below is the PMA piece – please take the time to have a look at what was said in the pub industries’ highest circulating trade magazine – followed by the experience of Val and Gavin Spencer who were picked out especially by Bernard in the article for not being ‘delighted’ with their outcome….(bet you understand why they aren’t by the end.)

It is the truth and will be one of only 2 PICAS cases that can ever be told as the new rules tie you into enough confidentiality to make your eyes water!

This story just goes to show that being labelled a winner does not mean you really are one…

Statutory code: Pubs Governing Body chair Bernard Brindley hits out at licensees ‘trying to discredit PICAS’

13^th November 2013

Dear Bernard,

We are sending you this letter in shock and dismay at your attack on the Publicans, you and the BII, purport to represent, as well as in your capacity of representing the PICA Service, which you advertise as being independent. With particular regard to your personal attack on me; both my husband and I will set out clearly for you, and your ‘Service’, in this open letter, exactly where you failed in our eyes and why we believe your service will never be the solution to the Publican core issue of risk and reward; a fundamental tenet of self-regulation. All our opinions on the PICA-Service are based on factual evidence and our own experiences. Our aim is not to attempt to discredit the PICA-Service, but simply to tell the truth about the process as seen by us, the user and what you chose to term ‘winner’.

Firstly, we would like you to be aware that our ‘resolution’ was so unsuccessful that our ‘winner’ status has lead to our relationship with Enterprise Inns going from bad to worse and recently again escalating in its unpleasantness, with probably more yet to come. This is a clear example of your Service’s inability to arbitrate, conciliate, resolve or take forward Publican and PubCo relationships meaningfully; and therefore fails to contribute to self-regulation, or the principles it is supposed to represent.

The following is the documented and evidence –based use of your service, as experienced by us, which lead us to our conclusions:

1. The PICA-Service was presented with documents, regarding which you state (letter dated 27 March 2013) the Service will only refer to our 53 appendices if warranted, and, our evidence only relating to matters arising after 30^th June 2010. Therefore, we can assume, your Service did not understand or take into account the facts and details (evidence) of the relevant years which led to the point of failure in the rent review system. Nevertheless, you still felt it suitable to comment on this same time period in your press release, contrary to your own confidentiality agreement.

2. We were asked 3 times to resubmit our claim for incurred costs as they were insufficient – even when backed by submitted chartered accounts, bank information and P60’s. Our 4^th submission was finally accepted and, as stated in your email of 8^th April 2013, Enterprise was given the opportunity to comment on our calculations. However, we must point out that we did not see any calculations to support your chosen award or the calculations Enterprise Inns may have done.

3. Our hearing was held in BBPA offices, of which you only made us aware too late, to arrange an alternative. We were asked to leave the building twice, whilst Enterprise were permitted to add missing emails to their previously submitted file, from within the privacy, convenience and comfort of Brigid Simmond’s office. This is just simply a clear illustration of bias in favour of the PubCo’s using the service. This would not happen in any reasonable Court, Mediation or Arbitration service.

4. The first email was found by your panel to contain none of the information that Enterprise Inns had said to you, and us, it contained. The Divisional Director and Enterprise Inns were found to have lied as to the content of this email and had used it as evidence of a rent review in 4 separate internal investigations until that moment.

5. The second email had always been relied on by Enterprise Inns as proof of a rent review, but was never seen by us, even after repeatedly asking. Your panel then allowed it to be redacted by Simon Townsend, again in the privacy of Brigid Simmond’s office, by the Divisional Director, whilst we were asked to go to the local Pub. We were never told what this email contained, but were informed by Judge Barber that it was not relevant to the case and that the hearing was over.

6. In having submitted, and had accepted by your service, 4 clear grievances, your initial findings of “a breach of the spirit of the code in relation to communication and transparency” failed to directly, or adequately, address those specific grievances linked to Enterprise Inns’ internal Code of Practice and the Industry Framework Code, contrary to the terms of your own service papers.

This extract is from one of our attempts to get PICAS to address this issue, (11/07/13):

“no judgment is given on either points 1 and 2, which have direct relevance to our future protection under, or reliance upon, the self regulatory system. The protection afforded to us by the C.o.P. and the I.F.C. are represented as the security that ensures fair and reasonable practice and therefore something that must/can be depended and relied upon”

7. After a further letter from the PICA-Service (17/07/13), where again no proper Judgment, or reasoned explanation is offered, but the opportunity is however taken to remind us of the dangers of losing any cash award, if we are found to break the PICA-Service confidentiality rules from your revised Service procedure papers. This was not the version of the Service we applied to use, or the version that our case was accepted on.

8. After 8 emails asking for you to adhere to point 13 of your service papers (as issued by PICAS March 2012, and upon which our application was accepted March 2013), and to clarify if our accepted grievances were upheld, or not upheld, we were given some findings. This had taken 15 days from our hearing to the notional findings, and a further 26 days to extract something that was close to the service we signed up to.

There are a number of detailed procedures, in both Enterprise Inns ‘Code of Practice’ and the Industry Framework Code, relating to rent reviews, which in our case were clearly not followed. This is reinforced by the words of Mr Simon Townsend (ref: letter 17/01/13), where he acknowledges a rent review was not conducted within the terms set out in the code of practice.

The PICA-Service findings were that in both, the internal & the industry framework, Enterprise Inns had breached only ‘the spirit’ of those codes. No official, actual or substantive breaches of either Code were found.

However the acknowledged absence of a properly carried out rent review by both parties, contrary to both Codes of Practice, and the legal requirements for rent reviews in our lease, remains a documented fact.

We were also disappointed in your findings of “no failings of internal grievance procedures”, when, as business partners with Enterprise Inns, we had;

• Over 22 phone calls to Enterprise for help, at the point of our breach, ignored.

• 4 direct contacts with a Divisional Director ignored.

• been given no direct contact with Enterprise Inns for over 10 months.

• A year later to have the person directly involved in the issue, investigate himself, twice,

• An investigation that used incorrect, misleading and evidence which had been witheld to support a false version of events as exposed by your panel on the day of the hearing.

• To have this failed internal process repeated, at 3 levels within the company,

• To then be told that we had no protection from any self regulation because of a hidden technicality!

• A process that has taken over 2 and a half years to get from breach to the PICA-Service.

Your failure to find an issue with this process appears to acknowledge this type of disregard for its tenants as acceptable practice for pub owning companies.

On top of all this; is the manner of the PICA-Service press release regarding our case. We had a number of times (including our letter 27/06/13 and email 01/07/13) stressed and directly raised our concerns over confidentiality, along with your lack of a formal data security policy. The confidentiality clauses in your service papers, which you took great care to quote to us in your letter, include the PICA-Service rules on press releases, which are;

“Whether or not a breach has occurred and to name the pub owning company

or brewery involved, it may identify the subject matter of the breach,

but will provide no further detail.”

In our case PICAS choose to release the following:

“Whilst the PICA-Service recognised the level of support the respondents had supplied to the complainants over a period of time, it had concerns as to failures to demonstrate that the level and quality of its communications with its tenants were to the standards to be expected of them when conducting a rent review.”

The opening words are a clear breach of the confidentiality that we had been assured of by the PICA-Service, with the rest of the statement devoid of any culpable wrongdoing.When questioned as to why they broke their own confidentiality rules, the PICA-Service simply stated that “the panel felt it right to include a mention of support”There were many other aspects to our case that the PICA-Service could have chosen to release, such as the way Enterprise Inns were repeatedly found by our panelto have withheld misleading, inaccurate and finally redacted evidence during our hearing.

The press statement, coupled with the tailored ‘non-findings’ are both clear examples of how the PICA-Service was used in our case, to hide the obvious failings in self-regulation. Of greater concern is the inclusion, in your judgment letter (06/08/13), of these words from Judge Barber where he reinterprets our 1^st grievance as;

“No rent review took place as part of cyclical review, as set out in the legally binding terms of Enterprise’s code of practice and under the actual terms of our lease.“

We have never referred to the contractual terms of our lease in any of our grievances, as PICAS has no legal authority to find on these matters. To include these words in our findings and pass judgment on them, without authority, appears to have been done for no other purpose than to actually circumvent our right to the protection of contractual law.

To be a genuine part of self regulation, there would be the need for PICAS to regulate or control the behaviour of pub owning companies, not simply make rather a poor show of covering up a failed system.

Given the PICAS position of being a non-legal dispute service, we do not understand your refusal to honour our expenses claim. Your reasoning is/appears to be the surprise requirement to adhere to a ‘Scott Schedule’, as would be used in formal court procedures. This requirement is not specified in the service papers we signed, and to not tell people until after their cases, unfairly precludes most from having recorded the necessary detail throughout the process to comply.

We would also like to register our disgust at the comments made by Phil Dixon regarding our PICAS case and the cases of others on a public forum, as comment on your own attack on publicans. We ask , what further breaches in PICAS own confidentiality rules gave access to the details that this ‘BII representative’ has deliberately leaked to the public, and what action will be you be taking against this latest outburst in series of displays of poor judgment and respect by Mr Dixon?

We again would like to stress that all we have ever done is to speak honestly and with integrity about our experiences as publicans. Now we ask you to speak in the same manner in reply to the obvious failings in the way our case was managed, and to how you believe the current PICAS system is worthy of being included within the remit of the following BII vision statement.

“To be the defining professional body delivering consistently high standards, employment practice, and social responsibility within the licensed retail sector.”

Yours sincerely,

Val & Gavin Spencer

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