Non-disclosure agreements do not stop tied tenants speaking to the PCA

The Pubs Code Adjudicator (PCA) has reminded the six regulated pub-owning businesses (POBs) that confidentiality clauses and non-disclosure agreements (NDAs) should not prevent tied pub tenants from sharing information with the regulator.

The PCA acted after becoming aware of tenant evidence suggesting that in certain cases, NDAs, or confidentiality provisions within settlement or exit agreements, may have been presented in a way that could discourage tenants from discussing their circumstances with the PCA.

Sharing information with the PCA

The PCA’s position is clear; no NDA, confidentiality clause or settlement agreement should prevent, or aim to prevent, a tied tenant from discussing their circumstances with the PCA. This applies whether the tenant is current or former.

The PCA relies on information from tied tenants and a wide range of other sources, including tenant representatives, pub companies, professional advisers, industry stakeholders and individuals involved in Pubs Code processes to understand how the Pubs Code is operating in practice. The use of NDAs for this purpose could substantially undermine the statutory purpose of the Pubs Code and the function of the regulator to assist tied tenants by understanding their circumstances.

What the PCA asked pub-owning businesses to confirm

The PCA wrote to each of the six regulated pub-owning businesses asking them to confirm that they do not consider the terms of any NDA signed by a tied tenant would prevent that tenant from discussing any aspect of their tied agreement with the PCA.

The PCA also made clear her expectation that any NDA or confidentiality wording used between a pub-owning business and a tied tenant should expressly state that it does not prevent the tenant from providing information to the PCA as the pub-owning business’s regulator.

Where such agreements are used in future, the PCA expects the wording, and any supporting or explanatory documents sent to the tied tenant, to make this position clear.

Responses from pub-owning businesses

The PCA has received responses from all six regulated pub-owning businesses. 

Each business confirmed either that it did not consider any NDA or settlement agreement wording would prevent, or purport to prevent, a tenant from discussing their circumstances with the PCA as required, or that agreements used by the business already contained wording to that effect.