Pubs Code Adjudicator Fiona Dickie has fined Star Pubs and Bars £2 million after finding the company seriously and repeatedly breached the legally binding Pubs Code over nearly three years
After completing her first investigation under the Pubs Code Ms Dickie said the nature and seriousness of the breaches by Star (part of the Heineken Group) that she had uncovered merited a financial penalty. The fine would act as a deterrent to Star and other pub-owning businesses she regulates from future non-compliance.
Ms Dickie said:
Star – which operates the pub estate business of Heineken in the UK - had persisted in forcing its tenants to sell unreasonable levels of Heineken beers and ciders when they requested to go free of tie. This was despite repeated regulatory interventions and clear arbitration rulings from the PCA.
The PCA found the company had committed a total of 12 breaches with the result that it had frustrated the principles of the Pubs Code. As well as identifying how the company had offered stocking terms that had acted as a deterrent to tenants pursuing a free-of-tie tenancy, the PCA highlighted systemic corporate failures by Star in its approach to compliance.
Specifically, during the investigation she found that the company had included a responsibility in the job description of the company’s Code Compliance Officer ‘to ensure the Code is interpreted to the commercial benefit of Heineken UK’. This breached the Code requirement to appoint a compliance officer whose role is to verify compliance.
In the report of the investigation the PCA described Star as a repeat offender and said the company had been given opportunities to set itself on a compliant path “but intentionally or negligently failed to do so”.
Ms Dickie’s investigation covered the period from 21 July 2016, when the Pubs Code came into effect, until 10 July 2019. She found multiple breaches by the company relating to stocking obligations. In particular, up to August 2018 96 tenants who requested a free-of-tie option were told that 100% of the keg beer they sold had to be Heineken brands.
This was contrary to the legal requirement that stocking terms should not prohibit a publican selling competitor brands. After several arbitration rulings by the PCA, the company switched to a tiered approach as to the amount of own brands to be stocked and specifying ‘must stock’ brands.
However, this “crude” policy was still not reasonable and compliant in many cases. Tenants who sold little or no Heineken products at the time that they asked to go free of tie faced having to stock 60% Heineken keg products within one year. This approach could have a particularly significant impact on some former Punch tenants whose pubs were purchased by Star in 2017. Star had no documentary evidence to show how the percentages in the tiered approach were decided.
All of this served as a barrier to tenants pursuing a free-of-tie option. Tenants told the PCA that Star’s proposed terms were inappropriate for the nature, size, location and trade of their pubs. They feared that they would lose their ability to react to local conditions and changing tastes during their tenancies; there was little demand for some products, including ‘must stocks’ and it would be a significant commercial risk for them to swap out currently popular products to make way for Heineken brands.
Ms Dickie said:
As well imposing the fine, which by law is based on the turnover of the whole of Heineken UK, the PCA has also ordered Star to make all its free-of-tie tenancies Pubs Code compliant and to ensure future Code compliance. Every free-of-tie tenancy agreed by Star must be audited and those tenants with non-compliant stocking requirements are to be assured that they will be made compliant or will not be enforced. All changes must be paid for by Star.
Ms Dickie has given the company six weeks to provide a detailed response to how it will implement her recommendations and she has ordered it to write to all its tenants explaining her findings, the measures Star is taking to respond to them and how these will affect tenants in practical terms.