A Shot in the Arm for Saga?

27th January 2021 by Sarah Prager

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Travel Insurance

As the rate of vaccination accelerates, so tour operators and travel agents are making cautiously optimistic noises about the Summer season. Interestingly, though, Saga Holidays, whose target demographic is being vaccinated as we speak, has said that it will not allow passengers to embark on its holidays or cruises unless they have been fully vaccinated at least two weeks in advance of embarkation. This includes holidaymakers who had already booked their holidays in advance of the announcement.

Saga has said that if a holidaymaker wishes to cancel an existing booking rather than undergo vaccination, a full refund will be provided, which, for what it is worth, is thought to be no more than its legal obligation under Regulation 13 of the Package Travel and Linked Travel Arrangements Regulations 2018. An interesting question arises, though, as to whether the tour operator would also be liable to compensate the holidaymaker for loss of enjoyment of the holiday in such circumstances.

The starting point is that the tour operator is not entitled unilaterally to alter the terms of the contract, so the additional stipulation that the holidaymaker must be vaccinated cannot form a condition precedent to the performance of any holiday contracts in existence at the time of the announcement (although it may apply in respect of booking subsequently made, depending on incorporation of the term). The tour operator is therefore taking up the position that it could supply the contract, but is refusing to do so for its own (no doubt sensible) reasons. Might it be said that Regulation 13(2)(b) applies? It will be recalled that this provision states:

“(2) Paragraph (3) applies where…

(b) the organiser is prevented from performing the contract because of unavoidable and extraordinary circumstances and notifies the traveller of the termination of the contract without undue delay before the start of the package.

(3) The organiser—

(a) may terminate the package travel contract and provide the traveller with a full refund of any payments made for the package;

(b) is not liable for additional compensation.”

The obvious point to be made is that the refusal to perform the contract is not unavoidable, because it is a decision made by Saga for policy reasons (those reasons, presumably, being primarily that the company does not wish to be responsible for further outbreaks of Covid-19, particularly on its cruise ships). It is suggested that a decision taken by the provider of services itself would be unlikely to be considered to be ‘unavoidable’ within the meaning of the Regulations, and therefore compensation will be payable, as well as a refund, to those disappointed holidaymakers who have not been vaccinated in accordance with Saga’s stipulation.

As indicated, the announcement, and any alteration to the company’s standard terms and conditions, are likely to be effective going forward; unvaccinated would-be holidaymakers are free to choose not to enter into holiday contracts with the company, and the condition does not seem, on the face of it, to be unreasonable. After all, if 100% of passengers on a cruise ship have been vaccinated, the likelihood of an outbreak of illness occurring on board will be much reduced.

The author has concerns, however, that requiring all passengers, without exception, to have been vaccinated raises issues of discrimination; some people cannot be vaccinated due to health concerns such as compromised immunity, some choose not to be vaccinated for faith-based reasons (and an anti-vaccination stance may in itself be a protected belief), and some cohorts will not have been vaccinated by the time Saga’s holiday programme re-opens on 1st May 2021, meaning that younger customers will not have been vaccinated in time to take up their holidays. Saga’s policy decision therefore appears to be discriminatory against some potential passengers on the grounds of disability, belief and/or age. No doubt the operator

would argue in its defence that the pressing need to prevent outbreaks of illness outweighs the
rights of these would-be passengers to travel with the company, thus justifying the discrimination; but this is a difficult argument at the best of times, and the caselaw on justification is not propitious. Could the Great Refund Saga be about to take yet another turn?

Sarah Prager is a Barrister with 1 Chancery Lane
She can be contacted at sprager@1chancerylane.com

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