Council wins legal battle against union over using non-teachers in nurseries

A JUDGE has given Scotland’s largest local authority the go-ahead to appoint non-teachers to head nurseries, after throwing out a union’s legal challenge.

The Educational Institute of Scotland complained that the move by Glasgow City Council was unlawful, but a judge in the Court of Session in Edinburgh has rejected the claim.

The ruling paves the way for the council to push ahead with plans to have managers, rather than the more expensive qualified teachers, in charge of nursery schools for children aged three to five.

The court heard that the council had 55 nursery schools, each of which, until recently, was managed by a head who was a teacher registered with the General Teaching Council.

There were also another 67 pre-school nurseries, but those were managed and staffed by “child development officers” with no teaching qualifications or experience, and were un­affected by the proposed policy.

In April, the council advertised vacant posts for the heads of ten nursery schools, on terms and conditions different from those which had covered the teachers who previously held the job. There was no longer a requirement that the person be a registered teacher.

The EIS asked Lord Brodie to set aside the policy and to ban the council from appointing anyone who was not a registered teacher. The recruitment process was put on hold while the case went to court.

One claim was that employing non-teachers at the ten nursery schools would breach the council’s duty under teaching regulations to “employ adequate numbers of teachers in schools under their management”.

Gerry Moynihan, QC, for the council, said regulations referred to “schools” in the plural, and not to each school individually. He said teacher input could be provided by teachers working in more than one place.

Lord Brodie said: “There is scope to utilise the services of peripatetic teachers. It therefore does not appear to me that simply because someone who is not a registered teacher is employed as head of one or other of the

affected nursery schools, and no other registered teacher is employed in that particular school, that the regulations have been contravened.

“[The EIS] case depends on the proposition that… every nursery school must, as a matter of law, have a full-time registered teacher. I consider that proposition to be unsound.”

The union argued that it had not been adequately consulted about the new policy. The council submitted that the complaint was unfounded.

Lord Brodie stated: “A right to be consulted is not to be confused with a right to veto. A consultation process is not a negotiation. A decision-maker may make a decision which the consultees disagree with, so long as he takes dissenting views into account.”

He added that, in his opinion, the union had not established on any ground that the decision to adopt the new policy was unlawful.

EIS assistant secretary Drew Morrice said after the ruling: “We are disappointed by the outcome, but as Lord Brodie has said in his findings, the Scottish Government policy of all P5 children having access to a qualified and registered teacher really is now at the discretion of all Scotland’s 32 local authorities.

“We think that this is the thin end of the wedge. The big question is, if there is no qualified teacher in an establishment, can it then be termed a school?”