Southern Rail's parent company has failed in an attempt to
obtain an injunction preventing strikes led by ASLEF by relying on
breaches of freedom of movement principles under the Treaty for the
Functioning of the EU (TFEU).
Govia GTR Railway is the franchise-holder for Southern Rail.
ASLEF has disputed Govia's plans to extend the use of
driver-only operated trains, arguing that the new system for
closing doors is less safe and more stressful for drivers. As a
result, ASLEF announced a series of strikes in December 2016 and
Govia applied to the High Court seeking an injunction to prevent
the strikes from going ahead. Govia argued that the planned
industrial action was unlawful on the basis that it interfered with
the rights to freedom of establishment and freedom to provide
services under the TFEU.
The Court of Appeal upheld the High Court's decision to
reject the application for an injunction. The Court did not accept
Govia's argument that the strikes were a deterrent to the
freedom of establishment – whilst industrial action may
discourage Govia's French investors from doing further
business, the law is not there to protect against that. Any strike,
even if legal, could arguably have the same effect.
The Court also found that Govia was "free-wheeling in the
slip stream of their passengers" in arguing that the strike
impeded passengers' freedom to give and receive services
through Gatwick Airport and therefore breached TFEU rights. It was
not possible in advance of the strike action to say that
passengers' ability to travel to and from the EU would be
impeded. Even if there were such an impediment, relying on such an
argument could undermine the right to strike. Previous EU
authorities that found industrial action unlawful because they
interfere with freedom of movement principles did so on the basis
that this was the purpose or intention of the action, rather than a
Govia has announced that it will be appealing to the Supreme
Govia GTR Railway Ltd v The Associated Society of Locomotive
Engineers and Firemen  EWCA Civ 1309
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