A Barrister representing FBD Insurance has said people in the bar trade “are not specialised staff” and “don’t have, in large measure, particular qualifications or education requirements”.
The hearing to determine what level of losses four publicans are entitled to after taking successful test actions over the company’s failure to pay out on business disruption claims due to the pandemic has been ongoing over the last two weeks.
Earlier this year, the Commercial Court found that a policy sold by FBD to Dublin bars Lemon & Duke, The Leopardstown Inn and Sinnott’s Bar and Sean’s Bar in Athlone covered losses they suffered after being forced to close due to the Covid-19 pandemic.
On day eight of the hearing which will determine the quantum of the publican’s losses, FBD argued it has no obligation to pay business interruption claims until after the whole indemnity period has expired.
The issues before the Commercial Court included the length of closures, staff costs, late payments and trends and circumstances.
Barrister Declan McGrath SC, for FBD, made a number of points about the plaintiffs’ “blanket approach” of retaining staff.
FBD is arguing it cannot be the case that the plaintiffs can claim for all members of staff or all full-time members of staff, saying they can only claim where the person was essential to keep on during the period of closure.
He said “the only qualifier seemed to be that they were full-time members of staff as opposed to them being actually essential to the continued running of the business or that it had been necessary to retain them”.
“We’re talking about the bar trade and we’re talking about people who don’t have, in large measure, particular qualifications or education requirements, or things of that nature; they’re not specialised staff,” Mr McGrath said.
“There was one point in Mr Cooney’s [Stephen Cooney, co-owner of The Leopardstown Inn] evidence where he asserted: ‘Kitchen porters, you can’t get good kitchen porters in Dublin’. The proposition that cleaners, kitchen porters and bar staff are specialised members of staff that you have to retain, that’s just unsustainable as a proposition.”
Justice Denis McDonald said it used to be the case that bar staff all had to go through a period of apprenticeship and it was a reasonably long period of apprenticeship.
Mr McGrath said the “days when you spent a year learning how to pour a pint of Guinness I think are gone”.
Mr Justice McDonald said there “is an art in doing that”.
He said not everyone can be a barman and there are certain skills required.
Mr McGrath responded: “Yes, it requires some basic social skills.”
Mr Justice McDonald said that while he was not an expert, based on the evidence he had heard from the plaintiffs, certain staff are “just so useful to the business the prospect of letting them go and not being able to re-employ them because they have gone somewhere else seemed to be a significant consideration.”
Mr McGrath said FBD was rejecting the “blanket nature of the approach” that everyone is essential.
“To quote Mr Justice Kelly at a list to fix dates: ‘If everyone is someone, no one is
anyone.’”
The two-week hearing concluded on Friday and the latest judgment will be given on December 7.
