From blacklists to unfair fees: Are airline terms and conditions unlawful?
A new investigation by Which? Travel reveals airlines bending, ignoring and potentially breaking the law.
Our expert lawyers looked at seven major airlines’ T&Cs and found some making misleading claims about compensation or charging unreasonable fees, while one airline, Tui, implied that it could choose to simply refund passengers instead of rerouting them.
In fact, under EC261 - the European rule on flight disruption that’s now in British law - when a flight's cancelled the passenger decides whether they want to be rerouted or refunded.
If passengers attempt to claw back money with a chargeback on their credit card some other carriers, including Ryanair, even have terms that allow them to be put on a blacklist.
Cancellations, delays and passengers being let down
This summer has already seen passengers facing travel chaos, with large scale cancellations from British Airways and easyJet. Some other airlines have also struggled to cope with staff shortages. Which? Travel reported BA to the Civil Aviation Authority (CAA) earlier this year for failing to inform customers of their right to compensation, or to reroute them when their flight was cancelled or disrupted BA was one of the airlines criticised by our lawyers for providing misleading information. It tells customers in its terms that it will compensate them in some circumstances if it ‘delays a flight by five hours or more’. But under EC261 - the European rule on flight compensation that’s now in British law - passengers can get up to £520 in compensation after delays of over three hours, not five.
Airline terms and conditions ignore passenger rights
Most of the airlines we looked at had terms that are potentially unlawful. American Airlines says that if you’re severely delayed ‘our sole obligation is to refund the remaining ticket value and any optional fees’. It even claimed that the law in Texas, where it’s based, will apply to your flight. But if you’re flying from the UK, British law applies. That means you can often claim compensation, thanks to the famous EC261.
Tui, which had better written terms in many respects, gives the impression that it will decide whether to refund or reroute passengers in the event of cancellations. In fact it’s the passenger who can choose between those options.
Many airlines’s terms, including Eurowings and BA, could have confused passengers about how long they have to bring claims. You have up to six years to make a claim if you’re denied boarding or severely delayed but only two years if you want to make a claim for something more serious such as injury.
When we checked Lufthansa’s T+Cs it had no mention of EC261. We queried this and it directed us to its general conditions of carriage but the section titled ‘Timetables, delays and cancellation of flights’ was completely blank.
When we contacted Eurowings it did agree to amend its terms, to make it clear that passengers have up to six years to claim EC261 compensation.
Ryanair and Wizzair may mislead passengers
On one of its forms Ryanair tells customers that they can be compensated for ‘delays within the control of Ryanair’. This is disingenuous because airlines are expected to be able to cope with many events outside their immediate control, such as poor weather in winter and strikes by their own staff. They still have to pay compensation, unless the events are considered ‘extraordinary circumstances’ - such as really extreme weather conditions.
We also found Wizz Air incorrectly telling passengers that they aren’t due compensation in the event of a diversion.
Excessive fees for name changes and airport check-in
Both airlines make considerable profits from high fees that are not included in the initial ticket price that customers see on aggregators such as Skyscanner.
They charge a premium for simple admin services, such as ticket transfers, correcting names and checking in at the airport.
Earlier this year, when Ryanair suffered an IT glitch and passengers couldn’t check in or print boarding passes, some customers still reported being forced to pay £55 for Ryanair to check them in at the airport. Ryanair later said customers who had been incorrectly charged should contact customer service to receive a refund.
Wizz Air lists 51 fees on its website, including up to €13 for ‘admin’ and €15 for booking through a call centre. Our lawyers said that some were ‘difficult to justify’.
Passengers can be blacklisted by airlines
During the pandemic Ryanair, unlike most other airlines, refused to refund customers for flights that operated but they couldn’t take while the country was under a legally mandated lockdown or travel ban. Some customers then resorted to using a chargeback on their credit or debit card to reclaim the money from Ryanair.
Hundreds of Ryanair customers who tried to use chargeback were then blacklisted - and others were threatened with blacklisting.
That’s because Ryanair’s terms state that it might refuse to carry a passenger on the grounds that (s)he ‘owes us any money in respect of a previous flight owing to payment having been dishonoured, denied or recharged against us’.
But while Ryanair is the only airline we have heard of enforcing this rule, our lawyers also found language in Wizz Air’s T&Cs that would let it do the same thing.
Civil Aviation Authority (CAA) fails to take action
Airline regulator the CAA launched its own investigation into terms and conditions in 2019. It criticised some airlines and recommended that they introduce a ‘key terms’ document to make them easier to understand.
However, we found that many terms were still confusing and difficult to understand - even for our team of expert lawyers.
Since the CAA’s review no enforcement action has been taken against airlines, despite rampant rule breaking during the pandemic. Which? Travel reported ten of the biggest carriers for failure to pay compensation on time but none were penalised.
The government has since said that it will give the CAA greater powers to take direct action when airlines break the law.
During the current travel chaos the regulator says that it is talking to the airlines affected but, again, there is no immediate prospect of them being fined if they break the law.
The CAA has only once in almost 20 years applied to the courts for an enforcement order against an airline. That was in 2018, when Ryanair refused to compensate passengers whose flights were cancelled because of its own staff strikes. Although Ryanair lost in the High Court last year and at the Court of Appeal this year the airline is appealing again and the case goes on.
Airlines respond
British Airways
BA said: “Our terms and conditions are easily accessible, written in plain English and are kept under review. We take unfounded and unsupported allegations very seriously, and we discourage Which? from making them. We always seek to meet our legal obligations and when a customer’s flight is cancelled or disrupted, we provide the relevant information to fully inform them of their rights.”
Lufthansa
Lufthansa disputed our lawyers’ interpretation of the law and told us that ‘there is no legal obligation known to us that would require referring to the Delayed Boarding Regulations in our Conditions of Carriage’. It also said that it had changed its terms since our lawyers looked at them and denied that there was any problem with them.
Ryanair
Ryanair denied that its terms and conditions mischaracterised passengers’ rights to compensation and said passengers could get more information on their rights by clicking on dedicated links within the terms. It also said it doesn’t charge large fees and that airlines have the commercial freedom to set fees as they see fit. In response to blacklisting, it said fewer than 850 passengers had “unlawfully” processed chargebacks via their credit card company, and that these passengers were required to settle their outstanding debt before being allowed to fly with Ryanair again.
Tui
Tui said: ‘The travel industry is heavily regulated and we therefore would be unable to operate unless we complied with the laws of England & Wales and the laws of other applicable jurisdictions. We review our conditions of carriage on a regular basis with a key focus on both the law and what is most important for our customers. Ongoing internal reviews of the language used in our terms and conditions are a part of this.’
Wizz Air
Wizz Air said: “Based on our 18 years of doing business in the UK, we are satisfied that our General Conditions of Carriage are fully compliant with all of the applicable laws and regulations set out by the UK Civil Aviation Authority.”
American Airlines
Didn’t respond to a request for comment.
