Summer 2021: Navigating the travel traffic light system

Key Contact: Cristina Benezet

Author: Tom Geen

The recent demotion of Portugal from the green list characterises the current uncertainty faced by holidaymakers and the travel industry alike.  The lack of clarity and assurance from the government has meant that organising holidays to foreign countries is currently fraught with difficulty, and many operators have decided to avoid offering holidays to customers altogether this summer.

As a travel operator, how can you safeguard your company whilst continuing to offer customers the chance to get away this summer? This article briefly examines your options.

Cancellations and refunds 

When a holiday is cancelled, the Association of British Travel Agents (ABTA) advises that in order to determine whether any repayment to the customer is indeed due, you will need to establish: who cancelled the booking; the reasons for cancelling; and when the cancellation took place.

The starting point, when considering whether refunds or compensation are due, is to look at the terms and conditions of the booking. If you are arranging package holidays, your terms of booking with the customers should not conflict with the implied terms contained in the Package Travel and Linked Travel Arrangement Regulations 2018 (PTR). Under the PTR, if a customer cancels its travel package as a result of “unavoidable and extraordinary circumstances” (UEC), such customer will be entitled to a full refund and will not have to pay a termination fee. A customer will not be able to claim its refund for any other reasons (other than UEC) unless your terms and conditions expressly say so. On cancellation, you may offer the customer a refund credit note, a deferred package or a different package. If none of these are accepted by the customer then a full refund is due.

The traffic light system introduced by the government has caused confusion amongst many in the travel industry. Under this system, only red listed holiday destinations will entitle the customer to an immediate refund (under UEC) as travel to these destinations is essentially banned. Travel to amber list destinations such as Portugal is permitted although it is discouraged (subject to the quarantine rules) and will therefore not qualify a customer for a refund or cancellation under the PTR.

Covid-19 guidance given by the government, supported by ABTA, for assessing cancellation or amendment rights is broadly set-out below:

• If the Foreign Office is advising against travel – You may offer the customer an alternative destination. If this is not accepted, the customer is usually entitled to a full refund.
• The travel destination requires quarantine – This is seen a significant change to the holiday, triggering a right to a full refund.
• UK Government guidance (amber/green) –The cancellation rights under the PTR do not apply to destinations where it is legal to travel for leisure purposes, even if it is against general government guidance, so no refund is due if you are able to provide the services contracted. The customer can only cancel your services in accordance with the cancellation terms agreed with you. Also, customers should be encouraged to check whether their travel insurance provides cover.
• UK quarantine on return – This does not trigger a right to a refund or cancellation if the trip can still go ahead as planned and the services can be provided. If a customer chooses to cancel (and not accept any alternatives offered), full cancellation terms will apply.
• COVID-related issues – if a customer tests positive for, or contracts COVID-19 this will not trigger a right to a refund under the PTR and the customer should be advised to speak to their travel insurer to cover this eventuality.

Compensation

The PTR protects travellers’ rights when booking package travel or linked travel arrangements. You are responsible under PTR for making sure that customers get the holiday they paid for, either by offering cancellation, repatriation or refunds, and in some instances, customers may be entitled to compensation if they suffered loss as a result of you breaching the PTR. In order to avoid this, you should ensure you follow ABTA advice.

T&Cs and Frustration

Refunds relating to non-package bookings will be governed by your terms and conditions, as the PTR will not apply. It is important to review your terms for current and future bookings to ensure they capture cancellation and refund policies in light of the pandemic.

If the situation is not covered sufficiently by your terms, you may be able to rely on the law of frustration. A contract may be set aside where unforeseen events either render contractual obligations impossible, or radically change the party’s principal purpose for entering into a contract. The UK Competitions and Markets Authority stipulates that this can occur where due to such events the services under the booking become impossible or illegal for you to perform (or the customer to receive) or where the services to be provided significantly change since the booking was made.

Changes to holiday bookings as a result of government restrictions triggered by Covid-19 may well cause a holiday booking to be frustrated. In this scenario, you will be entitled to deduct any expenses reasonably incurred to arrange the booking, before returning the remainder to the customer.

Customer information obligations

Part 2 of the PTR details the information to be provided to customers prior to booking, key rights and the minimum requirements for the package travel contract itself. Travel now is subject to several conditions, at least for the foreseeable future, and customers must be made aware of them. Maintaining a designated webpage with Covid-19 travel-related updates and FAQs could greatly assist customers. 

Foreseeable travel conditions should be set-out on your website if possible, for example:

• Travel restrictions/prohibitions;
• Declaration to travel;
• Pre-departure testing;
• Destination testing;
• Quarantine;
• Destination restrictions;
• Return requirements; or
• Travel insurance.
  

Conclusion

The current climate makes operating international travel packages very difficult.  If you plan to continue to offer holiday packages, it is imperative that you review your terms to ensure they capture the issues noted in this article. 

It is also important that you continue to monitor the governmental and legal developments in each country of destination to ensure that your policies and the information provided to your customers are clear and up to date.

For more information, please contact our Commercial and Technology Team.

Refusing to Attend the Workplace for Fear of Coronavirus – A Reasonable Excuse?

Key Contact: Claire Knowles

Author: Adam McGlynn

Most employees will need to attend the workplace to some extent during their employment. Perhaps it is their normal place of work and/or their duties can only be performed at certain locations. Even those who work more flexibly may have meetings, events, or administrative tasks which occasionally require their presence. Over the course of the Coronavirus pandemic, Government guidance on workplace attendance has been uncertain at best, however, as employment claims from 2020 start reaching their conclusions, we now have some further clarity on how tribunals are approaching this question.

Employees are protected against detriment or dismissal in certain health and safety situations including where they leave their workplace, refuse to return to it, or take other steps to protect themselves because they reasonably believe there is serious and imminent danger. The relevance of this protection has been widely discussed in relation to its application during the Coronavirus pandemic. The recent case of Rodgers v Leeds Laser Cutting examined to what extent belief in such a level of danger could or, in this case, could not be reasonable.

Rodgers v Leeds Laser Cutting

Mr Rodgers worked as a laser operator, a job that could only be done on-site. A week after the first national lockdown on 23 March 2020, Mr Rodgers informed his manager that he would no longer attend the workplace until the lockdown had eased because he was concerned about transmitting COVID-19 to his children. He was dismissed shortly afterwards and he claimed this dismissal was automatically unfair as it was in response to him exercising his rights to protect himself.

The tribunal found that, when Mr Rodgers took action, no reasonable belief in serious and imminent workplace danger could be established. Particular learnings from the decision include:

• The company had pro-actively sought external health and safety support to ensure the workplace was safe and complaint with Government guidelines at the time.
• Mr Rodgers did not raise any specific concerns with the state of the workplace itself and did not seek to take any steps which could resolve his concerns before absenting himself without notice.
• Mr Rodgers breached self-isolation guidance around the time of absenting himself, demonstrating that his concern about COVID-19 was not quite as substantial as claimed.

The Tribunal’s decision

The Tribunal concluded that the simple fact that the Coronavirus pandemic exists, is not sufficient in itself to excuse employees from the workplace. In particular, it may not be reasonable to believe there is serious and imminent danger if the employer has taken safety precautions recommended under Government guidance.

As claims of this nature have not yet reached higher than a first-instance judgment in the Employment Tribunal, future claims will not necessarily be bound by the approach of the tribunal in Rodgers v Leeds Laser Cutting. Additionally, there are a number of fact specific distinctions which may impact disputes around attending the workplace. For example, reasonable belief at the time will be dependent on Government guidance applicable to the employer’s sector (which is subject to change e.g. stronger, more restrictive guidance could give rise to a more reasonable belief in danger) and the steps the employer has taken in practice to comply with the Government guidance and create a safe workplace. Covid-19 transmission rates, vaccination rates, shielding guidance, and numerous other factors could also impact the reasonableness of a belief that there is serious and imminent danger.

Employees may have concerns about returning to the workplace, but a transparent and supportive approach can help reassure staff that their safety is being prioritised. Consulting with staff can provide clarity on employee concerns and guide the employer on any further safety measures which may be necessary, particularly where the employee may have a disability which requires reasonable adjustments to be made.

If you would like further advice on managing issues in relation to employees returning to the workplace, please feel free to contact our Employment Team.

The Legality of Lockdown – Do Coronavirus Restrictions Go Too Far?

Key Contact: Claire Knowles

Author: Adam McGlynn

2020 was a year of rules and restrictions the likes of which no one could have anticipated. Since March, legislative responses to the Coronavirus pandemic have been issued on an almost daily basis, though still often struggling to keep up with Government announcements. The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (the Regulations) first brought into effect, on 26 March 2020, the broad restrictions of the UK’s first national ‘lockdown’ which had been announced three days earlier.

The Regulations had a significant impact on civil liberties in that name of preventing the spread of COVID-19 including confining people to their homes, requiring businesses to close, and placing limitations on gatherings. Though the Regulations were subsequently repealed in July 2020, similar restrictions were consistently imposed by replacement legislation over the course of the year and are likely to continue, in one way or another, for the first half of 2021. But were the Regulations lawful? In December 2020, the Court of Appeal passed final judgement on this important constitutional question.

In May 2020, a judicial review was sought to evaluate the impact and appropriateness of the Regulations on the basis that they were unlawful on the following grounds:

1. The Regulations were ultra vires the Public Health (Control of Disease) Act 1984 (the Act);
2. The Regulations apply ordinary public law principles; and
3. The Regulations violate fundamental human rights guaranteed under the European Convention on Human Rights (ECHR).

The application was rejected by the High Court. However, the Court of Appeal decided to hear the application to appeal on the basis that it was in the public interest even though, by this point, the Regulations had already been repealed and the judgement would be largely academic.

Ultra Vires

The term ultra vires means to go beyond legal powers or authority. In this case, doubt was cast over whether the Secretary of State had been granted sufficient power by the Act to enact the Regulations as (1) the restrictions imposed were similar to those special restrictions which can be imposed by a justice of the peace; and (2) the Regulations applied nationally rather than to a more specific person or group of persons.

However, the Court of Appeal found that the express limitations within the Act, which the appellant relied on, were limitations of the restrictions which could be imposed by a justice of the peace. The Act, in fact, grants the Secretary of State quite wide-ranging powers as it was amended by the Health and Social Care Act 2008, following the SARs epidemic, in order to allow a swift response to a modern epidemic. If the Act imposed such severe limitations of the Secretary of State it would render the power ineffective in the event of such a tragedy and, if it also required an order from a justice of the peace, there would, in effect, be no power granted at all.

Public Law Principles

The appellant argued that the Secretary of State failed to abide by appropriate public law principles when issuing the Regulations. He argued that relevant considerations had not been taken into account including the effect of the Regulations on public health and the economy and whether less restrictive measures would have been more proportionate. There was no proof, however, that the Secretary of State did not consider such things and the Court of Appeal was satisfied, on the evidence available, that such considerations had been made.

The appellant additionally claimed the Regulations to be irrational as there was no justification for applying the restrictions to all members of the public when it could have been limited to more specific cohorts, such as those considered vulnerable. The Court of Appeal, however, recognised the presence of conflating opinions on this subject and found that the Government should be accountable to Parliament for political judgements such as this, rather than the judiciary. In addition, they recognised the presence of scientific and medical evidence considered by the Government and the responses already taken by nations across the world.

Contravention of Human Rights

The Regulations imposed a number of restrictions on the way we live our life in order to prevent the spread of Coronavirus. However, the Court of Appeal found that these restrictions did not infringe upon fundamental human rights, as alleged by the appellant. For example, they did breach the right to personal liberty because the regulations contained proportionate exceptions to the restrictions imposed including an overriding exception of ‘reasonable excuse’. Though the Court of Appeal accepted that the Regulations could arguably interfere with (1) the right to respect for private and family life; (2) the right to peaceful assembly and association; and (3) the right to peaceful enjoyment of possessions, these interferences would be justified as proportionate means towards a legitimate aim, namely the protection of public health. Considering the limitation and exceptions incorporated within the Regulations, the time limits and review mechanisms put in place, and the lack of any evidence that the Regulations were being enforced in a disproportionate manner in practice, the Court of Appeal found no breach of human rights.

Through the Regulations, the Government attempted to strike a balance between civil liberties and public health at a critical moment of the Coronavirus pandemic. The Court of Appeal recognised that the Government’s actions were lawful and that it would not be appropriate for the judiciary to interfere, or hold the Government to account, for matters of political judgement. Nevertheless, as the virus is brought slowly under control, and vaccines are gradually distributed, the Government will need to ensure that any restrictions imposed are necessary, reviewed regularly, and enforced proportionately.

For more information on the topic, contact our Employment team today.

Vaccination or Termination: Can Employees Be Required to Take the Coronavirus Vaccine?

Key Contact: Claire Knowles

Author: Adam McGlynn

Over the last year, the Coronavirus pandemic has caused widespread disruption to the livelihoods of the British people. At last the distribution of a vaccine provides a light at the end of the tunnel, however, there are many who are reluctant to receive it.

In the UK, individuals are free to refuse receiving a vaccination and the Government has stated that there is no intention to make any legislative amendment or exception to that rule for the Coronavirus vaccine. In light of this, employers may be wondering what options are available to them as they are obligated to take reasonable steps to reduce workplace risks and provide a safe environment for their employees. This would certainly include encouraging staff to receive the Coronavirus vaccination, however, should employers take a stronger stance, it may give rise to a tribunal claim.

Employers taking a strong stance on the vaccine may intend to initiate their disciplinary procedure for employees who refuse to be vaccinated. The ultimate end point of the disciplinary process would be the employees dismissal, however, there is also the risk that a claim arises earlier on the basis of the unfavourable treatment or because the employee believes the treatment already amounts to a constructive dismissal. The most likely claims an employer might face in this situation would be for unfair dismissal and/or discrimination.

Unfair Dismissal

An employee would need two years’ qualifying service to bring a claim for unfair dismissal here. If eligible though, the employee would have a reasonable prospect of successfully claiming that they have been dismissed on the basis of an unfair reason, one which is outside the employer’s reasonable range of responses. Employers would argue that requiring their employees to receive the vaccine amounts to a reasonable instruction as it is important for the safety of the work environment and to expedite the business’ recovery. This approach seems logical and in the interest of public safety, especially where the employee does not have a reasonable excuse for refusing. However, whether it is with regard to our fundamental right to respect for private and family life or out of respect for an employee’s genuine concerns about the vaccine, a tribunal would be justified in finding a dismissal to be unfair if solely for the reason that the employee refused to receive the vaccine. Whether the consensus of the courts falls on the side of public safety or personal rights in this argument is yet to be seen and will no doubt be explored in detail over the next year.

In some high-risk roles, such as care home support workers, it would be more likely that receiving the vaccine would be a reasonable instruction and the employer may have greater justification to use ‘refusing the vaccine’ as a reason for dismissal. This justification would be further strengthened if the employee is actively against the vaccine to the point where their conduct goes against the organisation’s stance on the vaccine’s importance. Even if the employee’s reluctance and/or conduct could amount to a fair reason, the employer would still need to follow a fair process which would, among other things, include evaluating alternatives to dismissal such as redeployment away from their current high-risk role.

Discrimination

A reluctance to receive a vaccine is not, in itself, a protected characteristic and so a discrimination claim based solely on that ground would not have a reasonable prospect of success. An employee may, however, try to associate their reluctance with a disability or a philosophical belief that prevents them from receiving the vaccine, though the facts would need to be heavily in their favour to find success. For example, being a passionate member of the anti-vax movement may enable the employee to establish a genuine belief against vaccinations, however, it may fail to be considered a qualifying philosophical belief if the tribunal finds that it is not sufficiently coherent or that the belief is not worthy of respect in a democratic society.

The strongest cases would relate to genuine religious beliefs which prohibit certain medical treatments or certain substances entering the body. Even if a protected characteristic can be identified, however, the employer would still have an opportunity to argue that requiring employees to receive the vaccination is a justifiable means of achieving a legitimate aim, for example, the safety of their staff and clients. Once again, the circumstances may give rise to a stronger justification depending on the industry and the clientele. For example, it would be easier to justify a vaccination policy in relation to medical professional and support workers who work with vulnerable clients.

As the Coronavirus vaccination is made available to more cohorts, please feel free to contact us if you would like to discuss your business’ proposed communications or actions on the topic.

HMRC’s 5th Treasury Direction – what’s still missing?

Key Contact: Claire Knowles

Author: Rebecca Mahon

On Friday 13 November, we were gifted the 5^th Treasury Direction on the Coronavirus Job Retention Scheme (CJRS). It applies to the extended scheme, which runs from 1 November 2020 – 31 March 2021 (albeit the 5^th Treasury Direction only covers the period up until 31 January 2021).

The Treasury Direction “firms up” a number of things that we already had an idea of following the government guidance which accompanied the announcement of the extension. However, there are some frustrating gaps so once again, we are left awaiting further guidance to clarify.

The key “missing points” are:

• Whether or not information regarding use of the scheme in November will be published online

The Treasury Direction confirms that HMRC will publish information about employers who receive CJRS payments for claim periods in December 2020 or January 2021. We assume that this means that HMRC won’t publish information about claims made for November, however this is not expressly stated, and it’s not immediately clear why this distinction has been made. Businesses will be aware that the government is coming under increasing pressure to be transparent about where taxpayer money is being spent, in light of recent revelations regarding the award of PPE contracts over the last few months. As such, we wouldn’t be surprised to learn that wider records regarding which employers have made use of the CJRS will be published in due course.

• Whether an employer can claim for an employee working their contractual notice in November 2020

Between the Treasury Direction and the latest employer and employee government guidance, we are now clear that an employer cannot claim on or after 1 December in respect of any employee serving contractual or statutory notice (including any employees who have retired or resigned). What remains unclear is whether an employer can claim for employees who are working a contractual notice period in November (the latest guidance for employers says you can claim for a statutory notice period being served in November, albeit please note pay would need to be topped up to 100% in circumstances where an employer is only obliged to provide statutory notice). As per our previous guidance note, we would recommend that any employers who consider that they may need to make dismissals in the lead up to Christmas should serve notice sooner rather than later in order to make the most of the ambiguity in the guidance for November.

• If employees that transfer to an employer under TUPE following a service provision change can be furloughed

Like in the 3^rd Treasury Direction, the language adopted in the 5^th Treasury Direction when referring to eligibility following a TUPE transfer is that of a “business transfer”, not a service provision change. However, following the publication of the 3^rd Treasury Direction, we made our own enquiries of HRMC on this point. The HMRC adviser we spoke to confirmed that, in their view, an employee that transfers pursuant to TUPE (whether due to a business transfer or service provision change) would be able to be furloughed by the new employer, provided that they satisfy the eligibility requirements set out in the Direction (now being that the employee must have been employed by the transferor prior to 31 October, and transferred to a new employer after 31 August).  However, this was only a view put forward based on the guidance available, and it seems that now (as was the case under the 3^rd Treasury Direction) the only way to know for sure whether or not an employee inherited following a service provision change can be successfully furloughed and claimed for is to actually make a claim.

Update: return from maternity leave

We previously reported that government guidance stated employees would need to give at least 8 weeks’ notice of early return to work from maternity leave, and that employers would not be able to furlough them until the end of the 8 weeks. The position on this has changed following the latest iterations of the guidance for employers and employees, which confirms:

• Employees need to give at least 8 weeks’ notice of their return to work, but employers can agree to shorter notice in certain circumstances.
• Employers will not be able to furlough these employees until the end of the 8 weeks, or the date that they have agreed the employee can return to work.

We don’t know whether the particular “certain circumstances” referenced in the guidance (but not expanded upon) will have any impact on an employer’s eligibility for reimbursement and await further clarification.

We will keep an eye on all of the latest developments and update you accordingly. In the meantime, if you need any assistance with navigating the extended CJRS, please contact our employment team.

“Firebreak” Lockdown to start in Wales on Friday

Key Contact: Claire Knowles

Author: Rebecca Mahon

Mark Drakeford has announced that from 23 October to 9 November, Wales will go into a full lockdown. During his announcement, the First Minister was keen to emphasise that in return for a short lockdown (just over 2 weeks), the most severe level of lockdown will be required in order for the lockdown to have the desired “firebreak” effect.

The key restrictions are:

• people must stay at home, except for very limited purposes;
• people must not visit other households or meet other people they do not live with;
• certain businesses and venues, including bars, restaurants and most shops must close;
• secondary schools will provide learning online only for the week after half-term, other than for children in years seven and eight. Primary schools and childcare settings will remain open;
• face coverings continue to be mandatory in the indoor public spaces that remain open (subject to certain exemptions and exceptions), including on public transport and in taxis.

Further information is expected to be made available, particularly regarding which businesses will need to close and the financial support to be made available to them, over the coming days. However, here is what we know so far:

Can I meet up with other people?

The short answer is, no. People in Wales should only spend time with members of their own household during the firebreak, both indoors and outdoors. You cannot form an extended household or “bubble” unless you are an adult living alone or are a single parent household. In such circumstances, you can be in a temporary extended household with one other household.

Can I go to work?

You must work from home if you can. However, people who are not able to work from home, but are able to work safely in their workplaces, can do so, provided their workplace remains open.

Work carried out inside other people’s homes can only take place if it is urgent or to repair a fault which poses a direct risk to people’s safety – for example, emergency plumbing or carry out an adaptation to allow that household to remain in their property, or the property is vacant.

Anyone who is in Wales, whether resident or travelling here, is bound by these rules. However, travelling to a workplace in Wales is a reasonable excuse to leave home. Similarly, people living in Wales can travel to England for work purposes where this is necessary and they cannot work from home.

Will my business be told to close?

Welsh Government have promised to publish a list of businesses that will be required to close “shortly”. However, we do know that all leisure and non-essential retail will be closed. This includes clothes shops, furniture shops and car dealerships among many others. Hotels will close. All close contact services including hairdressers, barbers, beauticians, tattooists, and sports and massage therapists are required to close. Driving instructors will not be able to operate and driving tests will be rescheduled. Property viewings will not be able to take place and high-street estate agents will need to close. Supermarkets and other food retailers, pharmacies, banks and post offices can remain open. You can still get an MOT done.

What support will I get if my business is told to close?

The First Minister suggested that, in addition to the support with paying wages that is being made available to businesses via Westminster if a business is ordered to close (see here for more information), businesses will be able to access an enhanced Economic Resilience Fund which includes:

• an extra £150m into phase three of the ERF to support to businesses affected by the firebreak;
• every operating business covered by the small business rates relief scheme receiving a £1,000 grant payment;
• retail, leisure and hospitality businesses which have to close and occupy premises with a rateable value below £50k receiving a one-off grant payment of up to £5,000; and
• additional discretionary grants and support for smaller businesses which are struggling.

We await further information from Welsh Government regarding access to this support.

Can I go on holiday?

No, you cannot go on holiday (outside of Wales) during the firebreak. Travel abroad is only permitted for people with a reasonable excuse. You also cannot travel to Wales for a holiday during the firebreak.

What happens if I break the rules?

The restrictions are being enforced by local authority environmental health officers and the police. They can issue fixed penalty notices (£60 for a first offence, doubling for each repeated offence) or recommend prosecution in a magistrates’ court. In addition, they have wide-ranging powers to take practical steps to disperse gatherings, require people to go home and enter property. If a business doesn’t comply with the rules, its premises may be shut down.

Further information regarding the firebreak will be published on our website and social media channels as and when it becomes available. In the meantime, please do not hesitate to contact our employment team if your business is affected.