EIS loses Glasgow City Council nursery legal challenge
- 18 July 2012
- From the section Glasgow & West Scotland
A teaching union has lost a legal challenge to stop Scotland's largest council from appointing non-teachers as heads at its nursery schools.
The Educational Institute of Scotland (EIS) claimed Glasgow City Council's new policy was illegal.
It said nurseries should have at least one registered teacher and Glasgow's approach would leave some without any.
But a judge at the Court of Session in Edinburgh ruled the union had failed to establish the decision was unlawful.
The EIS sought an order preventing the council from appointing new heads who were not registered teachers at 10 nurseries catering for three to five-year-olds.
The union also wanted the Court of Session to set aside a decision introducing a policy where the post could be held by individuals without teaching qualifications.
The court heard that until recently, each of the 55 nursery schools in the area has been managed by a head who is a registered teacher.
However, in the summer of last year, the heads at Pikeman and Bonnybroom nursery schools retired and the council filled the vacant posts with non-teachers.
In April this year, the authority advertised for heads at a further 10 nursery schools on different terms and conditions with no requirement that the holder of the post be a teacher.
The EIS challenged the legality of the move where they maintained no other registered teacher was employed on the staff.
The council agreed not to appoint non-teachers ahead of the outcome of the legal challenge brought by the union.
Ronald Clancy QC, for the union, argued that the opening of the posts to non-teachers could only be seen as "a major change of policy" by the council.
The appointment of non-teachers to the 10 posts advertised would result in those nursery schools having no registered teacher employed at them.
He maintained that would contravene teaching regulations which required the employment of adequate numbers of teachers in schools under their management.
Mr Clancy argued that an establishment that employs no registered teachers cannot be regarded as a school.
The adoption of the policy by the council and its application amounted to a closure proposal with attendant requirements such as consultation, which had not been carried out.
He maintained that the appointment of someone other than a registered teacher as head of the schools would be unlawful.
The EIS also claimed that there had been a failure to adequately consult on the proposal.
Gerry Moynihan QC, for the council, said that from Scottish government guidance on pre-school teachers, it could be seen that deciding what was an adequate number of teachers in an education authority's schools was a matter for its discretion.
He said there was no need for a teacher to be the head of the establishment and teaching provision could be met by peripatetic staff.
Lord Brodie said: "The decision as to what are 'adequate numbers of teachers in the schools under their management' is clearly a matter for the discretion of education authorities, having regard to the whole circumstances of each school.
"There is scope to utilise the services of peripatetic teachers."
The judge said the EIS case depended on the proposition that regardless of what judgement may be made by the education authority every nursery school must have a full-time teacher as a matter of law.
Lord Brodie said: "I consider that proposition to be unsound. There has not been any such requirement since 2003."