Operators should exercise caution around allowing customers to travel against Foreign Office advice, a leading industry lawyer has warned.
Farina Azam, partner and travel lead, Kemp Little, said an FCO advisory for a destination “doesn’t make it illegal to travel” but would invalidate a customer’s travel insurance and may impact an operator’s own liability cover.
“I’ve had clients with customers who are adamant they want to travel to a destination even though there’s an FCO advisory in place ask what they can do about it,” she told TTG’s latest Business Support Live.
“Ultimately you can’t ask customers to contract out of their legal rights under the PTRs, you can’t exclude your own liability for any death or injury that happens over there if it’s due to your negligence.
“So you are ultimately sending clients on holiday and there’s a risk you could receive claims against you that you’re not insured for. Even if they have signed something [pre-travel] you can’t get customers to sign up to something if it’s not legal.
“Generally it is quite risky to send customer to a destination against an FCO advisory and I would generally advise against it, but if you do want to do it, then you need to check that your own tour operator’s liability insurance does cover you for that travel and they [the customers] get a travel insurance policy that would cover them.”
Azam also discussed the use of ’disclaimers’ to protect operators from liability, if clients were to travel against FCO warnings or to prevent backlash should a customer be unsatisfied with the holiday they received.
“The danger with disclaimers is people go too far with what they can exclude. You can’t say to customers ’you’re travelling at your own risk’, they still have rights under the PTRs,” she explained.
“The problem with disclaimers is, if they’re not drafted properly, you’re going to potentially scare customers off for not any legal gain because you ultimately can’t enforce it.
“I’m not saying no to disclaimers – I think they do have a place. I would call them an ‘acknowledgment of risk’. They have to be carefully drafted to make sure they’re not excluding the customer’s rights."
She said it was better to outline changes to the holiday experience within T&Cs when booking to make customers aware of the product they were purchasing and help manage expectations.
“We wouldn’t expect the [Covid health and safety] changes coming in now to be a significant change to the customer’s holiday,” she added.