The industrial action currently affecting Southern Rail does not appear to have any end in sight. Further strike action by the train drivers union (ASLEF) has been called for 24, 25 and 27 January 2017. Faced with this situation, Southern Rail’s owner (Govia Thameslink Railway) has now stated that it will be taking ASLEF to the Supreme Court to try to stop its industrial action on the train network.

Southern Rail is in dispute with ASLEF over its intentions to extend the use of Driver Only Operated trains. ASLEF opposes the extension and wishes to establish a right to veto any new introduction of technology. ASLEF disputes that the new system of door opening/closing by the driver is as safe as the previous system which required guards to open and close the doors. It also argues that the new system causes additional stress for drivers. The RMT union (which represent the guards) is also taking industrial action against Southern Rail on the basis that it believes that the increased use of Driver Only Operated trains will at some point in the near future result in significant reductions in the numbers of its members being employed as guards.

Southern Rail is therefore faced with a “double whammy” of industrial action and this explains why commuters in the south of England are having such a miserable time with no sign of this misery ending. This Industrial strife also looks like it could be hitting commuters in the north of England in the very near future. The RMT has informed Arriva Rail North and Merseyrail that it will be in dispute with them unless they confirm that they intend to retain guards with safety based roles on any new trains.

This industrial action demonstrates how established trade unions intend to mount a fight to protect their members jobs, where they believe such jobs are threatened by the increased use of new technology. Driver Only Operated trains involve the use of cameras on station platforms and the trains, which allow the driver to monitor passengers entering and exiting the trains from their cabs, leaving the drivers (and not the guards) able to open and close the train doors.

Southern Rail’s appeal to the Supreme Court is also interesting in light of the UK’s vote to leave the European Union or “Brexit”. Southern Rail accepts that the industrial action by ASLEF does not contravene UK law relating to strike action but instead it argues that the action is unlawful under European Union Law because it breaches Article 49 (Freedom of Establishment) and Article 56 (Freedom to provide and receive services) of the Treaty on the Functioning of the European Union.

Southern Rail’s case is that because of the disruption to the operation of the rail link with Gatwick Airport in particular, there would be a large number of passengers, who, as a result of the strike, would be impeded in their ability to provide services to or receive services from persons situated in other EU member states. On this basis Southern Rails argues that the industrial action contravenes Article 56 which prohibits restrictions on the freedom to provide and receive services within the EU. The Court of Appeal was not convinced by Southern Rail’s attempt to rely on the legal rights of its passengers in order to invoke Article 56 and therefore rejected Southern Rail’s application for an injunction to stop the strike.

It remains to be seen how the Supreme Court will deal with this issue. However, it provides an interesting example of a UK based rail company attempting to use European Union law to challenge the legality of industrial action which is completely lawful under UK law. Suffice to say, once the UK has left the European Union, such challenges based upon the application of European Union law will cease to be effective.