By Gregg Hunt
Gregory Hunt is a leading independent mediator and Chief Executive of Hunt ADR Limited which supplies arbitration services to resolve disputes involving members of ABTA and other independent tour operators. He is a Fellow of The Civil Mediation Council and a member of Arbitra International, a leading global mediation and arbitration provider. He has worked in consumer and commercial dispute resolution for nearly 30 years and has been involved in administering, managing and mediating travel disputes for the majority of that time.
When you go on a holiday the last thing you want to do is think about having a bad time and having to complain, but sometimes things do go wrong and it is important that you let the tour operator know at the time, rather than wait until you get home.
Not all tour operators have reps on site, so whether you complain in person or whether it is via an app or any other means they advise you to contact them though, you must give them an opportunity on holiday to put right anything you think may be wrong, and is their responsibility, whilst you are away.
Unless the issue is of huge significance, such as a serious illness or an injury, it is also important to enjoy the rest of your holiday. Don’t let something relatively small stop you from enjoying your holiday, which you have probably been looking forward to for some time.
If the matter is not resolved to your satisfaction at the time, make sure you keep a good note of what the issue was, and take photos and videos if that helps to prove it was an important issue which was the responsibility of the tour operator. If you keep this evidence, you are more likely to be able to get some recompense in the form of compensation from the tour operator when you get back from holiday. It is also important to have documented what went wrong if you decide to go to arbitration or court at a later date if the matter remains unresolved.
Once you are home, you can continue your complaint with the tour operator, and if it remains unresolved, those who are members of ABTA, the Travel Association, will give you details about ABTA’s free conciliation service. Though ABTA is a membership body, the conciliation service is free, and ABTA try and help you find a solution that you are happy with as well as it being a realistic outcome for the tour operator. ABTA members include TUI, jet2holidays, Virgin Holidays, easyJet Holidays, MSC Cruises and many others.
If the matter remains unresolved and other avenues are exhausted, you will be invited to go to arbitration. Arbitration is similar to going to court, but it is a documents only process and an arbitrator will decide your case based on the evidence you have provided and the defence provided by the tour operator. It is very unlikely that an arbitrator (or the court) will award you a full refund. They can only put you back into the position you should have been in financially had the problem not happened. They can’t award punitive damages.
If your dispute with the tour operator is referred to arbitration you will complete an online application form and pay a fee, which is returned to you if you are awarded more than any offer made by the tour operator prior to starting arbitration. If you would rather not apply online you can complete a paper form.
Hunt ADR, who administer the arbitration scheme, will then collect all the relevant information from you and the tour operator and appoint an arbitrator. The arbitrator is appointed from a panel and is not directly paid by ABTA or the tour operator – they are completely independent and their only interest is that they issue a legally binding award which is reasoned so both parties can understand why a certain decision has been made.
If the arbitrator finds in your favour the tour operator must pay any amount awarded to you within 21 days. The arbitrator can only award money, they cannot award vouchers or discounts or other remedies.
If your complaint is about personal injury or illness there is an independent conciliation scheme run by Hunt ADR which has a success rate of achieving a settlement in more than 95% of cases. The conciliator works with both parties to find a solution and if one is not reached the conciliator can then make a recommendation which is binding as a contractual agreement if both parties agree.
It is difficult to say which option – arbitration or the small claims court – is the best route to take. If you lose at arbitration you cannot then go to court, it is one or the other. The arbitration scheme is cheaper and quicker than going to court and around 70% of claims end with a payment made to the customer by the tour operator. The scheme also allows for an appeal and ABTA will take enforcement action against any member who does not pay the award – which means this is never an issue as it is not in their best interests to have an investigation from ABTA.
It is important to make sure you follow the process when complaining:
- Complain when an issue arises so the tour operator has a chance to fix the issue
- If it is not resolved at the time then continue the complaint with the tour operator when you get home – don’t let a small issue on holiday ruin your whole holiday
- If the matter remains unresolved you will have an opportunity to complain to ABTA and if that remains unresolved you can go to arbitration or to court
- Do not contact Hunt ADR before you have complained to the tour operator or been to ABTA. We cannot help until we have a form submitted which is only available form ABTA or direct from non-Abta members like On the Beach, Love Holidays, Dial-a-Flight, Southall Travel and Travel Trolley. If you contact us direct we will only be able to refer you back to the tour operator or ABTA
- You will need to prove your claim, just saying it happened and not providing proof will not be enough at arbitration or at court
- Make sure you collect evidence (photos, videos, bills and receipts etc) to help support any claim
- Be realistic, you will not get the whole cost of your holiday back if there was a small issue during the holiday. A large part of the holiday is flights, so if the flights are fine and there is an issue at the hotel, then why would you expect to get the cost of flights back?
- Be aware at arbitration and at court the decision of the arbitrator or the judge is final, subject to strict rules of appeal. The arbitration scheme has an inbuilt appeals procedure which is more accessible than appealing at court. You do not need to have a lawyer at arbitration and the arbitrators are all experienced in dealing with travel claims, unlike judges who may have little or no experience of the subject matter itself at all
- Remember the judge and the arbitrator are independent, they are not there to fight your case and find in your favour, they are there to weigh up the evidence and award you compensation if you are entitled to it
Finally, remember to try and enjoy your holiday when you are there. A small issue can seem a lot more important on holiday but you will never get that time back, and you may never go to that country, or resort again. There will be parts of the holiday you can still enjoy so do not let it take over your whole experience. The vast majority of holiday complaints are resolved in resort. A significance number are then resolved when there is intervention from ABTA, and the numbers which go to court and arbitration are relatively small.