The following article appeared in ABTA's issue of Travel Law Today - Autumn 2021.

Joanna McLachlan, Associate Partner – Plexus Law LLP

After the restrictions of the last 18 months, the increased opportunity to travel overseas is another step to freedom for many. Inevitably, as more passengers travel there will be more complaints, but what complaints can be expected from people travelling in a world still dealing with COVID-19?

As a result of the restrictions put in place to manage COVID-19, we have all become accustomed to our day-to-day life being moderated in many ways. Most people will be aware that, when they travel to another destination, they will be required to comply with local COVID-19 restrictions. The information provided pre-departure is key to managing the expectations of passengers. 

Many holidays will have been cancelled prior to departure under Regulation 11(3) of the Package Travel and Linked Travel Arrangements Regulations 2018 (PTR), covering situations where the organiser is constrained by circumstances beyond their control to alter significantly any of the main characteristics of the travel services.

A passenger who is able to proceed with their holiday may find that they are unable to board their flight or enter the destination country of arrival, due to a failure to comply with the appropriate COVID-related requirements for entry. Although the individual passenger is responsible for complying with entry and return requirements, if there has been a failure to provide adequate or accurate information regarding health formalities by the tour operator at the time of booking, in accordance with Schedule 1(15) of the PTR, this will be a breach if a passenger has placed reasonable reliance upon it. The tour operator could find themselves liable for consequential losses.

Every hotel in each resort will have been required to comply with local government COVID-related requirements: certain hotels may be closed, with alternative accommodation offered; buffet service may be restricted and replaced with waiter service; there may be a reduced range of available restaurants because of staff sickness and quarantine, or the practicalities of serving guests safely; limits might be imposed on the number of guests who may use the swimming pool at any one time, and it may be necessary to pre-book an allocated slot; bars and nightlife might ordinarily be a compelling draw to the destination, but they may be closed entirely or limited. The list of possible areas for quality complaints is extensive, but whether they are justified and whether compensation will be payable, will largely depend on the information available to the tour operator, and what is provided to the passenger, prior to departure. 

The starting point is Regulation 15 of PTR 2018. The organiser is required to remedy any lack of conformity with the contract unless it is impossible to do so. Under Regulation 16(4) of the PTR however, passengers will not be entitled to damages if the organiser can prove that the lack of conformity is: ‘(a) attributable to the traveller; (b) attributable to a third party unconnected with the provision of the travel services included in the package travel contract and is unforeseeable or unavoidable; (c) due to unavoidable and extraordinary circumstances’. The sudden imposition by the local government of additional restrictions whilst a passenger is already in resort will be covered by Regulation 16(4)(b) and (c), and thus there would be no obligation to pay a passenger compensation. 

Each case will be different, depending on the nature of the restriction, the availability of information prior to departure and the degree to which the holiday as a whole has been affected. 

For instance, a swimming pool may be only one of several advertised features at a hotel, but whilst allocated slots must be booked as a result of COVID-19 restrictions, it is still available. 

It is unlikely therefore, that compensation would be payable, especially if passengers have been warned of restrictions prior to departure. Contrast this with a hotel where the major advertised feature is a water park, and there has been a failure to warn passengers that guests may only access this on a restricted basis once a day. This is far more likely to impact the holiday. The question will be whether warning could have been given in advance, or whether the restriction has been imposed suddenly as a result of COVID-19 restrictions whilst the passenger is already in resort. If the information was available prior to departure and the passenger could have been offered cancellation or alternative options, it is more likely that they will be entitled to a remedy under Regulation 16 of the PTR. 

Some passengers managed to enjoy a holiday, but then found they were unable to return home due to testing positive for COVID-19 whilst in resort. In these cases, the tour operator would be required to give assistance without due delay in accordance with Regulation 18 of the PTR. This might take the form of assisting with re-booking a flight, providing information on access to medical or consular facilities or organising accommodation. This circumstance may also be covered by Regulation 15(14)(a) of the PTR. Where the organiser is unable to ensure the traveller’s return as agreed in the package travel contract because of unavoidable and extraordinary circumstances, the organiser must bear the cost of necessary accommodation for a period not exceeding three nights. It is, of course, debatable whether a passenger contracting COVID-19 during the current pandemic would be considered “unavoidable and extraordinary circumstances”. It is open to a court to interpret the wording of Regulation 15(14)(a) as written.

Let’s end with some good news. Some restrictions may actually lead to fewer complaints. Whilst most hotels take great pains with food hygiene, it may be that the enhanced health, safety and hygiene procedures necessitated by COVID-19, will see fewer gastric sickness claims arising. That could be a COVID positive!