We like to think that our 'Hot Topics' webinars spark some debate when challenging questions are put to our panel, and yesterday's Hot Topics has done exactly that! If you want to catch up on our latest Hot Topics, you can here
The new traffic light system means that travellers returning to the UK will need to produce a negative covid-19 test before being able to return to the UK, which led to our panel being asked.... what are the implications for tour operators if the traveller fails to do so? Who will cover the costs of extended accommodation? What about replacement travel tickets back to the UK?
The simple answer is that it will depend on the reason why the traveller is unable to produce the negative test result in time for departure back to the UK. Let's look at a few of the scenarios that might arise.
What if the traveller receives a 'Positive' Test Result?
Accommodation
Where the package includes travel to/from the UK, the traveller may be entitled to have the cost of accommodation for 3 additional nights covered if they can show that the reason they have received a 'positive test' was for reasons:
- beyond their control, and
- which they could not have avoided even if all reasonable measures had been taken.
The onus is on the traveller to prove this – which could lead to some tricky arguments. Tour operators may be justified to say that, whether or not a traveller contracts Covid-19 during a holiday is something that is very much in the traveller's control! The traveller could, for example, have failed to adhere to social distancing requirements, or attended places against the local restrictions.
On the other hand, the traveller may say "I followed all the guidance, maybe the hotel didn't clean the tables often enough, maybe it was that person that bumped into me in the street, maybe the test result is wrong... who knows!?". If a Judge were to accept such an explanation, and decide that it was 'more than 50% likely' that the traveller 'took all reasonable measures' to avoid contracting Covid-19, the traveller will be entitled to have the cost of 3 additional nights' accommodation covered.
Where the package does not include travel to/from the UK, the tour operator will presumably be able to ensure the traveller's return to the end point of the holiday as per the itinerary. If so, there is no obligation on the tour operator to cover the cost of 3 additional nights' accommodation.
Repatriation
It is unlikely that there will ever be an obligation for you to arrange or pay for replacement travel tickets back to the UK. The traveller would need to show that, a) you/your suppliers have failed to perform the travel services correctly, and b) that failure has caused the traveller to contract Covid-19. In practice, that will be very difficult for the traveller to prove!
Assistance
As always, tour operators are obliged to provide assistance to travellers who are 'in difficulty' such as providing information on health services, local authorities, consular assistance, phone calls and sourcing alternative travel arrangements; however the tour operator is not expected to incur additional costs in doing so. In fact, the tour operator can charge a reasonable fee for providing this assistance, if the difficulty is caused intentionally by the traveller or, again, through the traveller's own negligence.
What if the traveller doesn't get a test result back in time?
Accommodation
Tour operators may be obliged to cover the cost of 3 additional nights' accommodation if the traveller did everything they reasonably could have done to obtain a valid test result in time before departing, but were unable to do so. Fortunately, the new 'traffic light system' seems to have been designed to make it as easy as possible for travellers to be able to source testing kits and receive prompt results. In particular, the expectation is that:
- PCR, LAMP and Lateral Flow tests all count (for pre-departure tests)!
- Lateral flow testing kits are generally much cheaper and easier to get than a laboratory-processed PCR test;
- Some testing providers allow travellers to order a lateral flow test device and take it on their travels; and
- Some testing providers allow travellers to book a digital video appointment with a health care provider and take the test whilst they are abroad.
The hope, therefore, is that travellers ought to have no good excuse for being unable to obtain a test result before departure and, if so, you do not need to cover the cost of accommodation for 3 additional nights.
Repatriation
The position here is exactly the same as in the example above.
Assistance
The position here is exactly the same as in the example above.
In Summary
As explained in more detail above, tour operators are unlikely to find themselves having to cover the costs of repatriation, but you will need to provide the usual basic assistance to travellers 'in need' (e.g. information on health services etc). As for accommodation, tour operators will not need to cover the cost of 3 nights' accommodation unless:
- The traveller can show that they 'took all reasonable measures' to avoid contracting Covid-19, yet still gave a 'positive test'; or
- The traveller can show that they 'took all reasonable measures' to obtain a test result, but were simply unable to do so in time before departure; or
- You or your suppliers were somehow responsible for the traveller contracting Covid-19
To minimise the risk of any of the above events happening we would strongly recommend:
- Making sure that your customers are well informed about the practical steps that are needed prior to their initial departure from the UK, including their options as to what tests they can use, where to get them, when to take the test, how to submit the results etc.
- Ensuring that you and your suppliers are following all the current Health & Safety guidance throughout the trip (e.g. social distancing guidelines, cleaning regimes etc)
- Speak to your accommodation suppliers about the possibility of travellers being forced to stay longer than expected. Perhaps they will agree to waive any charges for the first three days, or offer discounted rates.
- Encouraging all customers to have suitable and appropriate travel insurance in place.
Of course, if you need further assistance to understand your obligations in various scenarios, or you find yourselves in a dispute with a customer – feel free to get in touch with us using the details below!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
