News and Publications

Are we nearly there yet? Essential reading for non-essential travel outside the UK

Posted: 28/05/2021


As of 17 May 2021, the UK Government removed the restrictions in place in respect of non-essential travel outside the UK and introduced a traffic light system whereby all countries were placed on a red, amber or green list. 

Although a few holiday destinations are now permissible, there are many points to consider before travelling given the massive impact that the Covid-19 pandemic has had on travel and the travel industry. Trips abroad are further complicated by the fact that major tourist destinations such as Spain, France, Italy and the USA are (at the time of writing) on the amber list.

According to the UK Government website, 'you should not travel to amber list or red list countries'. However, if a consumer chooses to visit an amber or red country, they must comply with the Government rules before and on arrival into England (note: rules may vary slightly between England, Northern Ireland, Scotland and Wales). Listed below are some of the key considerations for travel companies and consumers when offering or booking holidays abroad.

Package holidays

Cancellation policies
When the Covid-19 pandemic forced the cancellation of tens of thousands of holidays last year, the Package Travel and Linked Travel Arrangements Regulations 2018 (PTR) at least offered a potential remedy for UK consumers. If a package travel contract could not be performed because of unavoidable and extraordinary circumstances, the associated travel company was required to provide customers with the option of a full refund within 14 days of termination of the package travel contract.

However, in this post-Covid landscape, the pandemic can no longer be seen as an unavoidable and extraordinary circumstance as (sadly) it is now part and parcel of everyday life. If a consumer now cancels a package contract before it starts, it may be necessary for them to pay a cancellation fee - even if this cancellation was due to a Covid-related event. Such cancellation fees may include the entire sum of the deposit paid towards a holiday, which would then not be recoverable.

According to the PTR, a travel company must have a cancellation policy setting out the circumstances in which a cancellation fee will be charged to the consumer and how much that fee will be. It is important for travel companies to ensure that their cancellation policies are clear and unambiguous in their terms and conditions. Equally, consumers need to read and understand the terms of the cancellation policy, before they book, to avoid any unwelcome surprises.

Contract alterations
As a consequence of the change in status of the Covid-19 pandemic, it is more likely that package holiday contracts will be altered rather than cancelled. Travel companies will seek to alter their contracts when required to do so and consumers will presumably be keen to go on holiday even if it is not the holiday they initially booked.

If a travel company cannot fulfil the requirements of the original holiday contract and is forced to alter the package holiday contract due to events outside its control (such as a hotel closing because of a Covid-19 outbreak or UK tourists no longer being permitted to visit a specific country by that country’s government), it may propose changes to the holiday contract (such as a new hotel or an alternative destination) or offer a substitute package (and terminate the original). The consumer may, within a reasonable period, accept those changes or terminate the original holiday contract without paying a termination fee.

If the consumer accepts the changes proposed or an offer of a separate package and this results in a package of lower quality or cost, the consumer is entitled to an appropriate price reduction. If the consumer rejects the proposed changes and the offer of a substitute package, the travel company must provide the consumer with a full refund within 14 days.

Importantly, if a country were to be removed from the UK Government’s green (or even amber) list, this would not, by itself, result in the travel company being unable to fulfil its obligations under the holiday package contract. The only change might be the consumer’s isolation/quarantine requirements on returning to the UK.

Accordingly, if there were no other external factors preventing the travel company from complying with its obligations, the travel company would not be obliged to alter the holiday contract as a result of a holiday destination being downgraded on the traffic light system.

The travel company may choose to include additional obligations in the package contract to clarify what happens if changes are made to the contract or if the holiday is cancelled due to Covid-19. The onus is on the company to set this out clearly in its terms and conditions and, again, the consumer should consider these carefully before booking.

Home and away - information to be provided by the travel company before booking
Before concluding the contract, a travel company must provide the consumer with ‘information on health formalities of the country of destination’. This may include the UK traffic light system as well as restrictions in place on foreign consumers in the country of destination, for example, if only essential travel to a country is permitted.

The travel situation remains very fluid so travel companies should keep themselves up to date with the relevant information on UK travel requirements and those of foreign countries so that they can give their customers all the necessary information.

Travel insurance
It is now a condition of some travel companies’ terms and conditions that customers take out travel insurance to cover Covid-19 risks.

Most travel insurers take into account the up to date guidance of the Foreign, Commonwealth and Development Office (FCDO) when deciding whether to cover travel to a particular country. They will usually not provide cover to countries where the FCDO guidance advises against non-essential travel.

At present, for example, in respect of France, the FCDO guidance advises against ‘all but essential travel to the whole of France based on the current assessment of Covid-19 risks’. As a consequence, although it is not illegal to travel to France, most UK travel insurers will decline cover to any UK consumers travelling there.

In the coming weeks there is scope for a great deal of confusion, with consumers assuming they are covered when, in fact, they are not. It is therefore very important that travel insurers ensure their policy wording is crystal clear to avoid any ambiguity on these issues.

As the pandemic has developed further and become part of the ‘new normal’, certain travel insurers have begun to offer cover for expenditure related to Covid-19 (for example medical costs), for an additional premium. Consumers should therefore search the market carefully to ensure they find a policy that works best for them.

Non-package holidays

Where individual parts of a holiday (accommodation, flights, other transport etc) are not bought as a package or linked travel arrangement, consumers do not have the same protection that they would if the holiday was bought as a package.

Consumers are entitled to a price reduction where the travel company seeks to alter the terms of the contract such that the services provided do not conform with the services described in the contract. As regards flights, in the event that their flight is cancelled, airline passengers must be offered the option of reimbursement of the full cost of their flight within seven days. However, the additional obligations imposed on the travel company under the PTR (as set out above) do not apply.

In respect of non-package holidays, therefore, consumers will need to pay more attention to the terms and conditions because these are likely to set out the rights and obligations of the parties in various scenarios. If a travel company has not updated its terms and conditions to adapt to the post-Covid landscape, it may wish to do so to cover Covid-related scenarios. This could avoid potentially costly arguments in respect of whether the contract has been frustrated and, if so, whether the travel company has incurred any expenses in providing the holiday service.

Additional requirements

Many consumers will already have become unstuck due to additional requirements of which they were not aware. For example, some holiday companies have strict Covid-19 testing and vaccination requirements. Other countries may have their own restrictions on international travel. Consumers must therefore ensure that they are aware not only of the rules in the UK but also of those in the country they are visiting, in order to avoid spending money on a trip which they are unable to take.

Summary

More than ever, it is vital that consumers do their research before booking a trip abroad; they should check UK and foreign destination rules, their travel company’s terms and conditions, the latest FCDO advice and their travel insurance policy terms. Equally, travel companies must regularly review their terms and conditions to ensure they factor in all the evolving restrictions and requirements imposed on international travel.


Return to news headlines

Penningtons Manches Cooper LLP

Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority.

Penningtons Manches Cooper LLP