The EIS union is to ramp up pressure on the Scottish government to introduce a national, legally enforceable standard on access to a teacher in pre-five education.
The move comes after the union lost its challenge to Glasgow's plan to appoint non-teachers as heads of nursery schools.
The judgment by Lord Brodie in the Court of Session ruled that the government's policy of pre-five children having access to a teacher was a matter for the discretion of each local authority.
"This decision exposes the fact that the Scottish government policy is no more than a presentational fig leaf," said EIS assistant secretary Drew Morrice.
He told TESS that the union was still considering lodging an appeal.
The EIS argues that where access is to a peripatetic teacher, the service is often "random" and delivery " inconsistent". The role of teachers in pre-five education was crucial now that Scotland's Curriculum for Excellence spanned ages 3-18, said Mr Morrice.
"We call on the Scottish government to legislate to ensure uniform national provision rather than to allow the postcode lottery of provision which Lord Brodie's decision legitimises," he added.
A spokesman for the government said: "Access to a teacher in nursery schools remains important and peripatetic models, where teachers work across more than one school, continue to offer flexibility in terms of how teachers support and work as part of a wider team delivering early learning and childcare."
Education Scotland is carrying out research into the impact of access to a teacher or a nursery worker with an early education degree, he added. The report, due later this year, would enable the government to consider what further monitoring and research on the early years specialist workforce was needed.
Glasgow City Council advertised 11 posts for heads of nurseryearly years establishments on a 52-week basis in April. One was filled internally, but the EIS issued a legal challenge over the remaining 10, as the council had widened eligibility to non-teachers.
It argued that the appointment of a non-teacher to run a nursery school was illegal when no other registered teacher was employed on the staff and that opening the posts to non-teachers constituted "a major change of policy".
The absence of registered teachers would contravene teaching regulations which required the employment of adequate numbers under a council's management, it said.
But Lord Brodie ruled: "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 every nursery school must have a full-time teacher as a matter of law, regardless of what judgement may be made by the education authority.
"I consider that proposition to be unsound. There has not been any requirement since 2003," said Lord Brodie.
On 27 April, Glasgow City Council advertised 11 posts as head of early years establishments. One vacancy - Bellrock Nursery - was withdrawn for an internal candidate who was entitled to be redeployed.
The recruitment process for the remaining 10 was frozen during the course of the EIS legal challenge, which failed last week. The council has now offered six of the posts to registered teachers (on council officer terms and conditions) and three to holders of a BA in Childhood Practice who are registered as lead practitioners with the Scottish Social Services Council. One post is to be readvertised.
Nursery headteacher salaries range from pound;42,000 to pound;50,000, with the majority sitting at around pound;44,000-pound;46,000. The top grade for heads of centre is pound;44,187.
Nursery headteachers have fixed school holidays, while a head of centre is entitled to 28 days which can be taken flexibly throughout the year, plus 12.5 public holidays.
In-service days are the same across both types of contract. Teachers appointed under the new contract can remain within the teachers' pension scheme if they so wish.
Photo credit: Chris James