The High Court made it clear that the ASLEF action is legal under UK law and that EU freedom of movement principles do not apply.




I was in the High Court for most of the hearing into GTR’s application for a temporary injunction to stop the ASLEF strikes on Southern pending a full trial of the legality of these strikes under EU law.

As we know, the injunction was not granted, but the hearing clarified a number of points about the law and this strike which are worth taking note of.

This is what I understood:

The industrial action by ASLEF, an indefinite work to rule plus selected strike days, only concerns Southern drivers.

The action does not concern Gatwick Express or Thameslink. Their drivers were not balloted.

The Thameslink service is not affected. The action does however affect GatEx but only because some GatEx services are driven by Southern drivers. On strike days, GatEx should run about 50% of services, on non-strike days, a fairly full service.

The points to note which came up are these:-

Under UK law, if a strike meets tests of legitimacy, the union and striking employees have immunity from claims for damages for breach of their employment contracts.

In the present case, the strike meets these tests for these reasons.

There is a legitimate aim: preventing the extension of driver only operation. This concerns the terms of employment or working conditions or safety of drivers and whether you agree or not, it is a legitimate aim.

An aim that would not be legitimate, to take an extreme example, would be a threat to strike until Jeremy Corbyn was elected prime minister; but this is not where we are.

Whether the strike is, in part, to support the RMT is irrelevant.

Second, the strike is not “secondary action”. The action taken by drivers is against their own employer not someone else’s.

Thirdly, there has been a valid ballot.

That is it. The strike is legitimate under UK law.

Crucially, there is no test of reasonableness or proportionality under UK law. The GTR case was an attempt to import such a test by using EU law. The judge did not agree with the argument, but did give GTR the right to appeal.

Under EU law there is a principle of freedom of movement and freedom of establishment. It is illegal for a public body (a union is such a public body) to create an unreasonable obstacle which deters or are likely to deter a company from moving from its home country to another country, even if these obstacles are legal in that second country.

I am sure I have not summarised it exactly right, but this is the gist of it.

GTR argued that Keolis, its shareholder, being French, and having moved to the UK was entitled to protection under this law and that the union action was such a obstacle on its business.

The judge found that the union action was too indirect and uncertain to constitute such an obstacle. Keolis, having been in the UK for 25 years, is not likely to leave because of this action.

Had he found that Keolis was entitled to protection under this law, there is then a test as to whether the obstacle, the strike, was reasonable; i.e. was there a reasonable aim and was the action proportional.

My layman’s guess is that this argument would have failed. Proportionality is not about the misery of the passengers but whether the action is proportional to the aim. The aim, stopping DOO, whether you agree or not is a reasonable aim for a union to have, and a strike is not a disproportional action in the context of that aim. There is no other obvious action the union could take to stop DOO. The judge said he did not have to address this point.

GTR had a second argument, that passengers travelling to Gatwick to fly to other countries were entitled to protection under the freedom of movement clause.

The judge found that the industrial action was too indirect and uncertain to constitute an obstacle to free movement. On strike days GatEx is running some sort of service and there are other ways to get to Gatwick Airport.

The injunction was not granted.

I think UK judges will be extremely reluctant to agree to an interpretation of EU law which would introduce tests of reasonableness and proportionality into UK industrial relations – and anyway, I do not think it would work if they did.