Foreign Office Advice

While the traffic light system will govern the restrictions faced by residents returning to England from 17 May onwards, the other side of the equation is the crucial travel advice for countries provided by the Foreign Office (FCDO).

Jo Kolatsis, partner at Themis Advisory, asked: “Does going on the red list automatically mean inclusion on the FCDO advisory against non-essential travel?”

“The report is silent on the involvement of the FCDO,” added Rhys Griffiths, partner at Fox Williams. “There’s one set of rules for when customers return home. We’re assuming FCDO is not going to advise against travel to a green country.

“Unless the approach is joined up, we could end up with some funny situations because customers are not going to want to travel to countries if the FCDO advises against travel. That could potentially scupper some of the good work.”

Griffiths was also worried there might be a “broad brush, blanket approach” from the government to assessing the Covid risk in countries as a whole – rather than looking at regions separately, such as the Greek islands.

Changing lights

Another key legal question for the industry is what happens if a destination moves from green status to amber or red between booking and departure? The UK government is due to reassess the green list every three weeks with the next one due in a couple of weeks. But what are customers’ rights when there’s a change in a destination’s status?

“I don’t think the traffic light system brings in any new rules and rights that we haven’t already been dealing with,” said Kolatsis. “Green to amber is less of an issue – the difference is whether you are quarantining for 10 days. Quarantining at home doesn’t mean the airline and tour operator cannot provide the services. This won’t trigger a refund.”

Kolatsis added that it may be “really difficult” for customers to understand their rights are governed by two different laws – the Package Travel Regulations (PTRs) for tour operators and the EU261 airline refund regime – with airlines having no obligation to offer refunds for uncancelled flights, regardless of changes to a destination’s traffic light status.

Griffiths agreed that quarantining on return to the UK “does not affect the ability of the organiser to perform the package and does not trigger any free cancellation rights under the PTRs”.

“The caveat is if there’s a situation in-resort that significantly affects the package, then customers do have full refund rights. You would guess if a country goes on the red list, there’s something happening in resort which may trigger those cancellation rights,” he added.

Griffiths also warned agents to be careful about what they promise to customers when they book.

“Representations made to the customer and your terms and conditions also create obligations between you and the customer,” he advised.

Vaccination status

Moves to restrict travel to just people who have been vaccinated against Covid could create legal issues with the Equality Act, suggested Griffiths, particularly for customers who may not be able to have the vaccine for medical reasons.

“The government is going for a Covid-status certification scheme to prove you’re a low risk of transmission – a vaccine or negative test or that you’ve had the virus and recovered so you have natural immunity,” he added.

“Provided companies follow that model, they should be OK with discriminatory laws.”

Kolatsis called for a “benchmark” on Covid entry regimes as many destinations are set to have different requirements for visitors.

“There are definitely going to be some exceptions – people with disabilities and medical conditions may not be able to be vaccinated. But there will be ways around it,” she added.

Covid charter

Another element in the recent Global Travel Taskforce (GTT) report is the proposed Covid charter, although Alderslade stressed the idea of a charter was “not new”.

“It has been discussed for two or three years,” he added. “It’s likely to be some sort of one-stop shop with the rights of the consumer coalesced into one place. I don’t think it will push the needle in terms of the laws already in place; it will reaffirm the rights of consumers.”

Kolatsis agreed the charter was likely to be a “regurgitation of rights that already exist”.

“I can’t see government putting in place anything that usurps these [existing] pieces of legislation,” she added. “It’s going to be some information given to passengers about what their rights are.”

The industry will have to show “flexibility” in how they deal with consumers during the rest of the pandemic period, argued Griffiths.

“This charter may be more pro-consumer than the industry would like,” he said. “I expect where there are points of interpretation, they will be more pro-consumer than pro-industry. The industry is expected to show flexibility, not insist that customers receive their bare legal rights.”

Being flexible has been one of the industry’s strengths over the past year and it’s a quality that will continue to be needed with so much uncertainty still ahead, despite Monday’s reopening of international travel.

To watch the seminar in full sign up to TTG+ membership