SCOTLAND'S leading teaching union has lost a legal battle against a move to employ non-teaching staff as heads of nursery schools.

The Educational Institute of Scotland (EIS) went to the Court of Session to try to halt Glasgow City Council from filling 10 head of nursery positions with people who are not registered teaching professionals.

Lord Brodie yesterday rejected arguments from the EIS that a school could not be called a school if no teachers worked at the institution.

The union had also argued that the employment strategy would result in pay and conditions anomalies for the posts, given new and lesser qualified staff would not be rewarded in line with nationally agreed pay scales.

A lack of consultation over the move was also argued in court.

However, Lord Brodie said the EIS had failed to prove the local authority's employment strategy was unlawful.

Since 2003, there has been no legal requirement to hire qualified teachers as heads of nurseries, the Court of Session heard.

Those with a BA in Childhood Practice – which has an emphasis on childcare and welfare, as opposed to education – can now apply for the post.

The EIS said issues were first raised in Glasgow in the summer of 2010 following the retirement of the heads of Pikeman Nursery School and Bonnybroom Nursery School and the subsequent hiring of those without teaching qualifications.

The union took legal action when last year the local authority advertised for heads at Wellfield Nursery School, Sighthill Nursery School, Bellrock Nursery School, Penilee Nursery School, Craigbank Nursery School, Adelphi Nursery School, Anderson Street Nursery School, Cranstonhill Nursery School, Kelvin Park Early Years Centre and Wyndford Nursery School.

Evidence given on behalf of the union stated that the duties of a nursery school head teacher are the same as the duties of a primary or secondary school head teacher.

Ronald Clancy, QC, for the EIS, accepted there was no statutory requirement for the head of a nursery school to be a registered teacher but pointed to regulations that an "adequate" number of registered teachers had to be employed in every nursery school.

He argued that Glasgow City Council would be in breach of its statutory duty unless a registered teacher was appointed as head of each of the affected nursery schools, where no other qualified teachers were employed.

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."

EIS assistant secretary Drew Morrice said the institute was disappointed by the decision.

He said: "As Lord Brodie himself acknowledged, the Scottish Government policy of pre-five children having access to a teacher is a matter for the discretion of each of Scotland's 32 councils. This decision exposes the fact that the Scottish Government policy is no more than a presentational fig leaf."

A spokeswoman for Glasgow City Council, who said the last few years "have seen a shift in working practices", welcomed the ruling, saying the outstanding vacancies could now be filled.