Leading industry lawyers have backed Abta in asserting that Foreign Office (FCDO) advice takes precedence over government guidance on whether package travel can go ahead to destinations designated amber under the traffic light system.
Travlaw senior partner and head of litigation Matt Gatenby said: “The issues with the non-alignment of the traffic light system and FCDO advice are the product of two different ways of looking at it.
“The Department for Transport is concerned about not bringing Covid-19 back into the country. The FCDO is considering ‘is it safe to travel to the destination?’”
Gatenby told an Abta Travel Law virtual seminar: “It is the FCDO advice people should be looking at.
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“FCDO advice ultimately equates to whether customers can seek a refund [for a cancelled holiday]. FCDO advice has always been the gold standard. If the FCDO advises against travel that is it.”
However, he noted this is merely the convention industry and government have followed for decades, saying: “It is not written down anywhere.”
Gatenby also noted “FCDO advice might change”.
When deciding whether a holiday can go ahead or should be cancelled, he said: “We used to look at the ‘21-day rule’ [for cancellations]. Now people are waiting until 24 hours or 72 hours before departure before deciding whether to go ahead.
“The law hasn’t changed. The situation has changed, but you can’t look too far away from the normal way of doing things.”
Farina Azam, partner at Deloitte Legal, agreed: “FCDO advice is what is important.”
She suggested operators make clear in their terms and conditions whether consumers would be entitled to a refund if they cancel a trip to an amber destination when Foreign Office advice means the holiday could go ahead.
Azam suggested: “If the customer will not be entitled to a refund, make it clear.”
Alex Padfield, director at law firm Hextalls, said consumers’ travel insurance cover for cancellations in light of FCDO advice would depend on the policy wording.
He noted: “Most policies say ‘This policy will be invalid if you travel against FCDO advice’. [But] you can find policies that will cover you for non-essential travel.”
Padfield suggested insurers’ policies may change, but said: “A week ago most policies were saying: ‘If FCDO advice changes before you go, we’ll pay out. But if you decide not to go that is not covered’.”
He argued: “Insurers will have to decide what to do about this.”
Abta senior solicitor Paula Macfarlane told the seminar: “The traffic light system is about whether you have to quarantine when you come back to the UK.
“Abta will abide by FCDO advice. If a country is on the amber list there is nothing to prevent a holiday going ahead.”
More: Foreign Office advice ‘the ultimate reference’ for travel
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Foreign Office advice and traffic light lists tipped to align