In this article, Katie Raby, Solicitor in Travlaw’s Commercial & Corporate Governance team discusses some of the legal issues surrounding vaccination policies should travel & leisure businesses be considering adopting them…
We were hopeful of some light at the end of the tunnel ahead of the government’s travel taskforce announcement back in May. Yet, despite those initial feelings of hope and positivity, only a few weeks later it feels a bit like we’re doing the Hokey Cokey as countries move between the traffic light system and hopes are dashed as those countries labelled ‘green’ are subject to further destination entry requirements, if indeed those destinations actually permit entry of UK citizens at all!
In this article, we consider the current state of play in terms of vaccination requirements as we hear talk of more and more destinations insisting on travellers being double vaccinated and we look at some of the questions that we at Travlaw have been receiving as clients attempt to make holidays happen whist being mindful of risk.
Recap of the Traffic Light System
As covered in our article (https://www.travlaw.co.uk/blog_posts/we-finally-have-the-green-amber-red-lists-what-now/) the system sets out what rules will apply to travellers before and after returning to England. Basically, it all depends on the colour assigned to each country, the key differences between each colour being:
- Red – travellers will need to quarantine in a managed hotel on return to the UK (and pay for the privilege);
- Amber– travellers will need to quarantine at home on return to the UK*; and
- Green – travellers will not need to quarantine on return to the UK, but they will need to produce a negative covid-19 test before they are allowed to travel back to the UK
*The requirement to quarantine at home will now be removed for fully vaccinated travellers from the 19th July 2021.
As we know, this is only part of the story as the requirements outlined above are concerned solely with the return to England. We have to also consider the second part of the picture, which are the destination entry requirements. Some destinations, despite being on our ‘green’ list, are not yet actually accepting travellers from the UK. So, ‘green’ doesn’t necessarily mean ‘Go’!
Will overseas destinations insist on travellers being fully vaccinated?
First and foremost, whatever the entry requirements are, it is ultimately the customer’s responsibility to ensure that they meet those requirements and that obligation should be set out in your customer booking terms and conditions. We already know that many destinations are insisting on travellers being double vaccinated either to enter or, to avoid quarantine on arrival (France, Germany, and Portugal to name a few). Information from the Foreign, Commonwealth and Development Office (“FCDO”) regarding travel to France states that travellers must have had their second jab no later than 14 days prior to arrival and it’s likely that these timeframes are going to differ by destination. We have seen much talk about ‘vaccine passports’ and whilst the UK NHS App is now up and running, and the EU’s digital certification scheme is also well on its way.
What is a vaccine policy?
Quite simply, if you require your customers to be fully vaccinated in order to travel, whether that be because the destination requires it for entry (or to avoid quarantine on arrival) or because you choose to introduce that requirement, then a vaccine policy will set out the general terms and conditions which will govern that requirement. You may also find it useful to provide an ‘FAQ’ section to explain your reasoning behind implementing such a policy. For example, many travel companies may wish to do this as part of their overall health and safety policy. As mentioned above, some countries have specific time periods in place to determine what satisfies their ‘fully vaccinated’ status i.e. both jabs having being received at least 14 days prior to travel, so a vaccine policy would set out what the minimum timeframe expected would be before you would accept a customer in a trip. Such a policy would also need to set out what you as a travel company would want to see by way of proof of full vaccination and the consequences if a customer fails to produce that proof. For example, you are entitled to treat the booking as cancelled and apply cancellation charges. Such cancellation charges would of course need to be reasonable in order to be enforceable.
Can we insist on our customers being fully vaccinated?
Putting the litigation hat on for the moment, we have had many questions from clients over the last few months concerning their exposure to claims if a customer should contract Covid-19 whilst on holiday. Naturally, that leads to consideration of ways that travel companies can protect themselves. Certainly, travel companies who offer travel services where customers undertake their holiday arrangements alongside the same group of people for the duration of the trip, such as cruise holidays or group travel, could potentially face a greater risk as the possibilities for infection could be narrower. So, yes, you could insist on your customers being fully vaccinated, but a few things to bear in mind as follows;
Is it discriminatory?
In the UK, the relevant law here is the Equality Act 2010, which makes it illegal to discriminate against someone on the grounds of a protected characteristic. Some of the protected characteristics that may come into play here could be;
Age (perhaps not everyone has had opportunity to have their second vaccine as yet),
Disability (where someone might be prevented from having the vaccine),
Belief (their belief simply prevents them from having the vaccine at all).
Without delving into this area too much, there is a defence to this where your actions, (those actions being the insistence of all customers being fully vaccinated to allow travel), can be justified as being a proportionate means of achieving a legitimate end. It is likely a strong argument that the actions are in the best interests of public health and that implementing such a policy is a ‘reasonable’ way of ensuring the health and safety of your customers. That being said, the Covid pandemic is an ever changing and evolving situation and these types of arguments have not yet been tested in the courts.
Data protection issues
Travel companies should already be familiar with the collection of personal data to enable the provision of travel services and the details of that collection and usage will be set out in a privacy policy. The introduction of a vaccine policy, is likely going to need to require the customer to provide further types of personal data, data that will fall into the ‘special categories of data’ classification. Special category data will include a customer’s health records, such as their vaccination status and any other medical information and any vaccine policy should provide a link to your privacy policy so customers are clear on how their data is being used. Data protection law requires you to have both a lawful basis to process special category data (under Article 6 of the UK GDPR) and to meet a further condition as set out in Article 9 of the UK GDPR. Typically, the lawful basis relied upon by travel companies is that of ‘contract’ i.e. the processing is necessary to make the booking and fulfil the contract with the customer. In order to satisfy the further condition under Article 9, you could reply on ‘explicit consent’ and so you would need to obtain specific consent from customers who are to provide special category data like this. It is therefore something you may need to look at providing for in your privacy policy and ensuring you have the internal processes set up to manage this process.
Will it eliminate the risk of being sued?
No it won’t, but if a customer is looking to sue you because they contracted Covid-19 whilst on holiday, they are going to have to prove that you were negligent AND that that negligence caused the customer to contract the virus. The customer will have a harder time to prove negligence where you can demonstrate best practice. By having a vaccine policy that focuses on the health and safety of guests, alongside evidence that the policy is being complied with, you are much better placed to fight these types of claims.
Practical steps for implementation
- We recommend any form of Vaccine Policy or Vaccine FAQs sit outside of your main booking terms and conditions. The reason for that is two-fold. Firstly, so that the policy can be easily removed at any time when it becomes inapplicable and secondly, because we don’t want these kind of special terms to be absorbed into a likely, lengthy terms and conditions document. This type of policy needs to be brought to the customer’s attention immediately so that they can gather the information they need to in order to make their booking and to ensure that customers understand that the vaccine requirement is a condition of making their booking in the first place.
- Set up an internal process – what information do you want to see as proof of vaccination? Where are you going to record that? Do you need to pass it on to overseas suppliers? Bearing in mind data protection laws and the key principles in terms of data minimisation (only taking what you need to) and storage limitation (only keeping it for as long as you need to).
If you require further advice on any of the issues raised in this article, or require assistance in the drafting of a Vaccine Policy, please get in touch.
Katie@Travlaw.co.uk
01132 580033
This article was originally published on: 14 July 2021
