Travellers will be required to produce a negative Covid test before returning to the UK. What if they don’t? Nick Parkinson of Travlaw considers tour operators’ liability
The government’s new traffic light system means travellers need to produce a negative Covid-19 test before being able to return to England.
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 it will depend on the reason the traveller was unable to produce a negative test result in time for departure. Let’s look at a few scenarios that might arise.
What if the traveller receives a positive test result?
Where the package includes travel to/from the UK, the traveller may be entitled to have the cost of accommodation for three additional nights covered if they can show the reason they 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 a traveller contracts Covid-19 during a holiday is something very much in the traveller’s control.
The traveller could, for example, have failed to adhere to social distancing requirements or attended places against local restrictions.
On the other hand, the traveller may say: “I followed all the guidance but the hotel didn’t clean the tables enough, or it was due to a person bumping into me in the street, or the test result was wrong.”
If a judge were to accept such an explanation and decide it was ‘more than 50% likely’ the traveller ‘took all reasonable measures’ to avoid contracting Covid-19, the traveller would be entitled to have the cost of three additional nights’ accommodation covered.
Where a package does not include travel to/from the UK, the tour operator would 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 three additional nights.
It is unlikely there would ever be an obligation for an operator to arrange or pay for replacement travel tickets back to the UK. The traveller would need to show that, a) you/your suppliers failed to perform the travel services correctly, and b) that failure caused the traveller to contract Covid-19. In practice, that would be very difficult to prove.
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, a 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 through the traveller’s own negligence.
What if a traveller doesn’t get a test result back in time?
Tour operators may be obliged to cover the cost of three additional nights’ accommodation if the traveller did everything they reasonably could to obtain a valid test result in time 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 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 cheaper and easier to obtain than a laboratory-processed PCR test;
- Some test providers allow travellers to order a lateral flow test device and take it on their travels; and
- Some test providers allow travellers to book a digital video appointment with a health care provider and take the test while abroad.
The hope is that travellers will have no good excuse for being unable to obtain a test result before departure and, if that is the case, you would not need to cover the cost of accommodation for three additional nights.
The position on repatriation and assistance is the same.
Tour operators are unlikely to find themselves having to cover the costs of repatriation, but you will need to provide 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 three nights’ additional accommodation unless:
- The traveller can show they ‘took all reasonable measures’ to avoid contracting Covid-19 yet still gave a ‘positive test’; or
- The traveller can show they ‘took all reasonable measures’ to obtain a test result, but were 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 we strongly recommend you:
- Make sure customers are well informed about the practical steps needed prior to their departure, including the options as to what tests they can use, where to get them, when to take the test, how to submit the results etc.
- Ensure you and your suppliers follow all the current health & safety guidance throughout the trip (e.g. social distancing guidelines, cleaning regimes etc)
- Speak to 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 to offer discounted rates.
- Encourage customers to have appropriate travel insurance in place.
If you need further assistance to understand your obligations or you find yourselves in dispute with a customer – feel free to get in touch with us at Travlaw.
Nick Parkinson is a senior associate at travel law firm Travlaw