Our team: Alexandra Cooke
The Foreign and Commonwealth Office (FCO) is, at the date of this article, advising against all travel to Hubei Province in China due to the ongoing coronavirus outbreak. The FCO are currently advising against all but essential travel to the rest of mainland China (not including Hong Kong and Macao). What duties do travel providers have to customers whose holiday paradise has been designated as a dangerous destination?
A duty to advise against travel?
Case law suggests a travel provider will not be liable for sending its UK customers to a dangerous destination where the customer has chosen to travel there despite knowing the risks. Given the extensive press coverage of the coronavirus outbreak, a customer would be hard pressed to say it wasn’t aware of the risks of travelling to affected areas. However, many providers choose to go beyond their duty of care, and cancel holidays to destinations which the FCO declares “off limits”. Indeed, many tour operators have cancelled holidays to China departing in the next few months. All travel providers who are ABTA members are required by the 2018 ABTA Code to direct customers to the FCO website for travel advice.
Obligations to package travel customers
If a travel provider is the organiser of a package holiday (which is broadly defined as two or more different travel services which are combined for the purposes of the same trip) it will have certain obligations to its UK customers under the Package Travel Regulations 2018 (PTRs), including in the event a “significant change” is made to the package.
In the event of a significant change which is beyond the organisers control (e.g. it is caused by a natural disaster or a health emergency), Regulation 11 of the PTRs requires organisers to:
The coronavirus outbreak
As the FCO has advised against travel to China, any reputable travel provider will have cancelled packages scheduled to depart in the next few weeks. They will need to inform the customer the package has been cancelled for reasons beyond their control, and offer a full refund or an alternative package to a different destination.
In many cases, it will not be clear whether the coronavirus will significantly affect the performance of the package. For example, the warning against travel to China may be withdrawn in April, and therefore packages scheduled to depart may be unaffected. Likewise, a destination may not yet be declared “off limits” by the FCO, despite being reported in the media as risky (e.g. Thailand). In these cases, the customer may not want to wait and see whether their holiday may be affected. Or they may also just get cold feet and decide they don’t want to take any risks. Where the customer wants to cancel in such circumstances (i.e. through choice) their cancellation rights will be subject to the travel provider’s cancellation provisions. These will only be binding on the customer if they are fair and transparent. Examples of unfair cancellation policies are charging the customer the whole or part of the price of the booking, regardless of when the customer cancels and whether the travel provider can recover its losses by re-selling the booking. Examples of fair and transparent cancellation policies are those which are justified, proportionate and clearly explained. For example, it is common for travel providers to have tiered cancellation charges, which only apply if the customer cancels shortly before departure, to cover the risk of the booking being lost.
Tourists who have already started their holiday in China are being advised to leave now; it will become increasingly harder to do so over the coming weeks as the Chinese government imposes further restrictions on movement within China. In these cases, it is likely a significant proportion of the package will not be provided. The organiser will need to arrange for a flight back to the place of departure, or to another place to which the customer has agreed, have, where appropriate, offer compensation.
Regulation 18 of the PTRs also requires organisers to provide assistance to customers if they are in difficulty during their package holiday. According to government guidance, such assistance should consist of mainly providing, where appropriate, information on aspects such as health services and consular assistance as well as practical help such as help with distance communications and finding alternative travel arrangements. The organiser can only charge a fee for such assistance if the difficulty is caused intentionally by the customer or through their negligence.
Obligations to non-package holiday customers
Customers who have only booked a single travel service (e.g. accommodation or flight only), or whose booking does not qualify as a package, have less legal protection when it comes to changes and cancellations to their travel arrangements. In most cases, their right to cancel will be governed by the travel provider’s terms of business, together with the terms of business of the service provider (e.g. the hotel or the airline). The customer must be provided with a copy of all terms and conditions which apply before they make their booking (otherwise they won’t be binding). The terms and conditions should also be fair and transparent.
The coronavirus outbreak – cancelled flights
In the case of customers travelling to China in the next few days, it is likely their flight has been cancelled. Customers who are flying with an airline based in the EU, or who are flying out of the UK, will have the right to a full refund (including other flights from the airline in the same booking such as onward or return flights) in the event that their flight is cancelled under EC Regulation 261/2004. The travel provider’s terms and conditions of business should deal with what happens in the event the flight is cancelled, delayed or denied boarding. Where the customer is contracting directly with the airline, they will need to contact the airline directly. It avoids confusion if the travel provider explains this in its booking terms and conditions, and makes it clear the travel provider has no obligation to compensate the customer.
Ultimately, when things go wrong, it pays to have a robust set of terms and conditions which are not only legally compliant, but customer friendly. Investing time in ensuring your terms and conditions are comprehensive, legally enforceable, and clearly drafted, can save you time and money when disaster strikes; both you and the customer can refer to a document which sets out your respective rights and obligations, and this should make for a more positive customer experience.