22.12.16
Court of Appeal defends Aslef’s ‘fundamental’ right to strike
The Court of Appeal has now published its reasons for refusing Govia Thameslink Railway’s (GTR’s) appeal against the High Court’s decision not to grant an injunction against Aslef’s right to take strike action over the issue of DOO trains, a decision which led to turmoil for Southern Rail last week.
GTR claimed the industrial action would be in breach of Articles 49 and 56 of European Union law, particularly in relation to the ability of persons to travel to or from EU countries due to the impact that strike action would have on Southern’s services to Gatwick Airport.
However, the Court of Appeal’s final decision defended the High Court ruling, saying that finding for GTR would “fundamentally undermine” Aslef’s right to industrial action, even if it were legitimate to dispute the form of the strike.
“It is not possible in this case to say, in advance of the action being taken, with respect to any individual passenger, that his or her ability to travel to or from the EU will be interfered with,” Lord Justice Elias wrote in his justification of the Court of Appeal’s ruling on 12 December.
“Moreover, it would undermine the right to strike in a most fundamental way if all passengers potentially and indirectly affected by the strike could claim that it was interfering with their rights to provide and receive services.
“Whether the strike is or is not proportionate, there are no legal grounds on which GTR is entitled to an injunction to block it.”
GTR argued that because the company is 35% owned by the French company Keolis SA, Aslef’s attempts to strike interfered with Keolis SA’s right to establish further enterprises in this country, an argument which was previously rejected by the High Court and upheld by the Court of Appeal.
The Court of Appeal also agreed that the impact on passengers using Gatwick was “indirect and uncertain” because they could get to Gatwick by other means. The Court said that allowing GTR’s argument would positively discriminate towards rail operators whose routes were near international passenger terminals against those that didn’t.
Commenting on the publication of the details of the judgement Aslef general secretary Mick Whelan said: “I am obviously pleased the judge refused GTR’s argument that the strike constitutes an unlawful interference with the right of establishment conferred by article 49 of the Treaty and the right to provide and receive services under article 56.
“Aslef has faced legal challenges from GTR since April of this year. This shows that the company has not been prepared to seriously address our concerns and has instead turned to the courts rather than sitting down to negotiate. The fact the company is still pursuing legal avenues rather than addressing our safety concerns makes me question their commitment to resolving this dispute.”
Aslef’s next drivers’ strike alongside the already striking RMT is set to last a full week from Monday 9 to Saturday 14 January, leaving leaders with little time to come to a compromise over the festive period. Previous discussions between Aslef and GTR at the conciliation service Acas in an attempt to resolve the dispute broke down without agreement last week.