Following our attendance at the ABTA Travel Legal Seminar, we have put together the key points discussed. Should you have any questions, please contact us.
Cancellation of holidays
Allowed when there is unavoidable and extraordinary circumstances, – this includes an outbreak of disease at the destination.
Does it apply to COVID19?
13(2) b – Cancellation by the package organiser;
If they are prevented from performing due to unavoidable and extraordinary circumstances there is no compensation due, but a full refund must be given.
Reg 12(7) – Cancellation by the Customer – they are entitled to cancel due to unavoidable and extraordinary circumstances at the destination or carriage of passengers which significantly affects it.
NB – this is where customers may rely on it to show that they may be at significant risk – for example an outbreak in the resort and cux has pre-existing medicals which make them vulnerable then this may be on a case by case basis.
What about customers wishing to cancel due to a disinclination to travel?
Then there is no right to cancel under 12(7) – and the organiser can impose reasonable charges for cancelling.
What about changes to the trip due to Covid19?
If the change is significant then the customer can cancel, if it changes the main characteristics of the trip then you can change or cancel, BUT social distancing and wearing of masks is NOT a significant change.
Check out the ABTA booking conditions clause update on this element to help manage expectations – if you have told clients BEFORE they commit to booking, then you are limiting the risk of them trying to cancel or making subsequent complaints.
What about Organisers who want to wait on updates from FCDO closer to date of departure before making a decision?
This is ok, but it needs to be detailed in your booking conditions and explained to the customer prior to their commitment to book – if you don’t tell them this ahead of booking it is likely that a court would favour the customer and find against you.
Consumer Rights Under Non-Package Bookings
EC261/20047 – This covers flights in and out of the UK – requirement to refund monies in 7 days of cancellation of flight.
Covid is an extraordinary circumstances so ok to cancel, BUT it has to be because of COVID and not operational issues – if its operational then compensation owed to the customer.
Cancellation of holidays
Allowed when there is unavoidable and extraordinary circumstances, – this includes an outbreak of disease at the destination.
Does it apply to COVID19?
13(2) b – Cancellation by the package organiser;
If they are prevented from performing due to unavoidable and extraordinary circumstances there is no compensation due, but a full refund must be given.
Reg 12(7) – Cancellation by the Customer – they are entitled to cancel due to unavoidable and extraordinary circumstances at the destination or carriage of passengers which significantly affects it.
NB – this is where customers may rely on it to show that they may be at significant risk – for example an outbreak in the resort and cux has pre-existing medicals which make them vulnerable then this may be on a case by case basis.
What about flight inclusive packages?
The Organiser has to refund the money, EVEN WHERE THE AIRLINE DOESN’T.
This goes back to your contracts with airlines – as an Organiser you need to review your B2B contracts and make sure you are covering these points within the contract.
What about accommodation only?
There is no right of refund as usually this is sold as ‘agent’ – the supplier can refuse a refund. This goes back to terms and conditions again.
What about claims for PII arising from COVID – wearing masks, distancing and facilities closed?
This is possible, but again goes back to your booking conditions – warn customers what to expect and be transparent during the booking process and you will be able to defend these claims.
What about local lockdowns – i.e. Areas of Nottingham unable to travel outside of the country due to covid local lockdown – This is NOT the fault of the Organiser and whilst it is unfortunate, the operator can apply cancellation charges as appropriate as per the regs.
CMA (Competitions and Markets Authority) advises that an Organiser cannot however ask a customer to commit a criminal offence or face a fine to travel – so the trip will need to be cancelled, you can’t insist people travel or allow them to do so in this event, but you don’t have to give a full refund.
What about Recoveries?
Suggest that recoveries are issued before 31/12 because after Brexit you will have BIG TROUBLE
Employment Issues - Covid
You owe your employees a duty of care whether in UK or outside. This includes those in resort.
Take care of health and wellbeing both physical and mental health.
Even if you have only one person still based in resort, you will need to ensure they are supplied with appropriate PPE to protect them and that you stay in touch and monitor. You must treat them as you would a UK based employee.
You should have a H&S rep – if there is only one person in resort they can be in charge of their own H&S but you need to monitor and DOCUMENT what you are doing to protect them and monitor the guidance issued in the country they are in.
Claimants (holidaymakers and Covid)
Hurdles for the claimant:
- Is the defendant contractually liable
- Did the hotel breach local guidelines / local law
- If yes, was the illness or death caused by the defendants breach of contract or duty of care
- What about the claimant’s own behaviour (i.e. if staff weren’t wearing face masks, did the claimant go within 2 meters of them?)
- Did the customer break rules that they knew were in existence (social distancing / mask wearing)
- If so, what damages are payable…
Defendant
Need to document everything, including hotel cleaning logs and trackers – and sickness records.Need to keep data from hotels as IT HAPPENS as claims may be presented 3 years later and guidance changes all the time on covid.
Need to retain epidemic tracking tools and this may be useful in defence, or to identify where there is a problem in order to locate the breach and fix it or reduce the risk.
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