The battle rages on to try to halt the train strikes which have affected so many people over the Christmas period and into the new year. The dispute outlined below between ASLEF and Govia GTR Railway Ltd (GTR), concerning driver operated trains has the potential to expand to other train operators, causing disruption in other areas of the country. Train operators will be trying to think as creatively as possible, to gain an edge where they may not appease the trade unions through more routine industrial relations negotiations.

In Govia GTR Railway Ltd v. The Associated Society of Locomotive Engineers and Firemen [2016] EWCA Civ 1309, the Court of Appeal considered an application brought by GTR (which owns the franchise to run Southern Rail) for an interlocutory injunction to prevent ASLEF (the train drivers' union) from calling strike action in December 2016 and January 2017.

The strikes concerned a continuing dispute about GTR's use of driver-only operated trains and the introduction of new technology. GTR accepted that, in calling strike action, ASLEF was not in breach of UK law (considered independently of EU law). However, GTR argued that it had a separate claim under EU law, in particular under Article 49 (freedom of establishment) and Article 56 (freedom to provide and receive services) of the Treaty on the Functioning of the European Union (formally the EC treaty).

GTR argued that the active engagement of its French shareholders in decision-making was enough for Article 49 to be engaged (which was accepted by ASLEF). However, to argue that it had a claim under Article 56, GTR needed to rely on large number of passengers being prevented (by the strike) from providing, or receiving, services to or from other EU states. This argument was assisted by the fact that the rail link with Gatwick Airport was affected.

Having considered the relevant law, the Court of Appeal did not agree that either provision had been breached. When determining if there was any claim under Article 49, the Court was required to look at the object or purpose of the industrial action, not the damage caused by the impact (i.e. the strike). In this case, the object or purpose of the action was to have a guard on each train as well as the driver, to ensure the safe closing of doors. There was no discrimination on the grounds of nationality. The Court of Appeal did not interpret this as a deterrent to freedom of establishment. They considered the impact of the extreme action of ASLEF on the French investors' willingness to continue to engage in business in the UK. However, the Court felt the purpose of the legislation was not to protect companies from the strong or extreme actions of trade unions.

The Court only provided a provisional view about Article 56. However, given GTR's acceptance that it was the strike action, rather than its purpose, that potentially interfered with passenger rights, this aspect of the claim was never likely to succeed. Furthermore, the Court of Appeal was clear that it would not expect it to be so easy to evade the specific transport provisions which featured later in the Treaty.

Not deterred by the Court of Appeal's adverse finding, GTR has announced its appeal to the Supreme Court. It said, "GTR is therefore prepared to continue its legal claim to the Supreme Court, as it believes that it has an arguable case that the industrial action is unlawful under EU law". While the grounds of appeal are not yet known, it appears likely there will be some legal argument about the application of the existing EU authorities (the object or purpose test), as that test was relevant to the claims under both Articles. The Court of Appeal had been wary of making a finding that foreign companies setting up, or expanding into the UK were interfered with on a basis which was “too uncertain, indirect or insignificant to have the requisite deterrent or dissuasive impact”. There is potential for some challenge to this finding, perhaps based on what was, or was not considered. Equally the challenge may be that the bar was set too high and the judge was overly influenced by the fact that the Unions were “strong or even bloody-minded trade unions”. Points about infringement of the rights of GTR's passengers are also likely to be revisited in the appeal in some way. The Court of Appeal was generally dismissive of GTR's authorities in respect of its points on Article 56, so there may be some interpretation points made on appeal.

There is little case law in relation to the transport provisions in Article 58, which may assist GTR to some degree in making points about its interpretation on appeal.

It remains to be seen if other employers with a cross-border shareholding will also seek to bring claims under EU legislation and, if so, whether further clarity will be provided on the proportion of the shareholding required to establish that cross-border element.

RMT has put other train operators on notice that they are not safe from the union's disruptive tactics unless it receives "cast iron assurances" about the role of guards. This is unlikely to be the last that we will see of the rail disputes.