As originally published by TTG.
With the Covid pandemic continuing for longer than anyone expected and with no definitive end point in sight, more and more companies are considering ways to sell holidays whilst limiting their exposure and risk under consumer legislation and the PTRs.
From the outset, it should be made clear that customers cannot be asked to contract out of their legal rights under the Package Travel and Linked Travel Arrangements Regulations 2018 (PTRs), and any attempt to do so will be legally unenforceable. However, how the PTRs will be interpreted, and the protections they afford to customers, can and will differ depending on when a customer has booked their holiday.
So, whilst those customers who booked pre-March 2020 can (and should) be given refunds if their booked destination is subject to the FCDO advisory against travel and they no longer wish to travel - what about those customers who are booking holidays now, fully aware of the pandemic and that travel is affected?
For example, customers who booked before March 2020 are in a very strong position to argue that they should receive a refund, if their chosen destination is subject to the FCDO advisory against travel and they no longer wish to go on holiday as a result. In part, this is because the existence of COVID-19 and its impact on travel was entirely unforeseeable before March.
However, what about those customers who are booking holidays now, fully aware of the pandemic and the impact it is having on travel?
Could there be an argument to say that they shouldn’t be entitled to the same cancellation rights? Potentially – yes, as customers should now be aware of the additional risks associated with booking holidays and travelling during a pandemic. Some customers will deliberately be booking holidays for travel later in 21/22, on the basis they don’t want to travel during a pandemic. However, for customers booking holidays to depart in the near future, it can reasonably be argued that the pandemic or a change to FCDO advice is no longer “unavoidable and extraordinary circumstances” for the purposes of the cancellation rights under the PTRs, as it would be for customers who booked pre-March 2020.
Therefore, on the basis customers are, at the time of booking, fully aware of:
- The FCDO travel advice relating to their chosen destination;
- Any requirement to quarantine to upon their return to the UK; and
- Any requirements which they might be subject to at the destination (such as presenting a negative Covid test);
It can reasonably be argued that, if those customers later change their mind about travelling and wish to cancel their holiday, when the holiday itself is able to operate as contracted, then they should be subject to the package organiser’s standard cancellation charges, as this can be treated simply as disinclination to travel, on the part of the customer.
That said, it’s something which needs to be treated with caution, and it’s important to ensure that customers are aware that their cancellation rights are affected. For anyone wishing to sell holidays departing during the pandemic, they should consider the following key points:
- Customers should be made aware of the FCDO travel advice relating to their chosen destination, as well as any travel (or other) restrictions and requirements they may be subject to at the destination itself;
- Customers should be required to purchase specialist travel insurance which includes cover for Covid-19 related issues, and covers them to holiday in destinations subject to a FCDO advisory against non-essential travel;
- Customer's cancellation rights should be made clear, including outlining the circumstances when the customer will and won’t receive a refund;
- Check supplier contracts to ensure refunds will be given in the event the holiday has to be cancelled. It may even be worth treating flights separately, whether that’s booking them as a single component or asking the customer to book their own flights, to limit your risk for flight refunds.
As with everything, communication is key! If you do wish to sell holidays for travel during the pandemic, ensure the risks, requirements and cancellation rights are communicated to the customer clearly, prominently and before the customer makes a booking.