The official equalities watchdog has issued a stark warning to the Government and local authorities that they could end up in court if they insist on passing over experienced staff for supply work in favour of newly-qualified teachers.
The Equality and Human Rights Commission was responding to the recommendation of the report by the Teacher Employment Working Group that "local authority employers should, wherever possible, use post-probation teachers to fill supply vacancies rather than rely on recently-retired teachers."
A leading academic has condemned such a move as "fundamentally ageist".
The working group argued it was necessary "to enhance the permanent employability prospects of post-probation teachers and thus keep them in the profession".
Fiona Hyslop, the Education Secretary, has accepted all 12 of the group's recommendations (TESS October 31). Cover should be allocated to post-probationers "to help them gain experience", she said in a radio interview last week.
But, since 56 per cent of this year's intake are 25 years old or younger and 90 per cent are below 40, Chris Oswald of the EHRC said it was "self-evident that the young would replace the old".
Under the UK Employment Equality (Age) Regulations 2006, discrimination can only be allowed if it passes a test of "objective justification", which would require a full "equality impact assessment". Mr Oswald said: "There is clearly something going on that is potentially discriminatory. We would therefore be seeking evidence that its impact is tested before it is implemented."
So far, neither the Scottish Government nor the Convention of Scottish Local Authorities has plans for any such assessment. "They are ill-prepared to implement the policy and, if they don't have the data, it would be unsafe to go forward," Mr Oswald declared.
A TESS survey of all 32 education authorities reported (August 29) that only 25 per cent of probationers had found full-time permanent posts at the beginning of the session, potentially squeezing out many older or retired teachers from extra earnings through supply work. By 2011, some 20,000 teaching graduates are expected to have gone through the probationary employment scheme which guarantees them training in school for a year.
Tensions are likely to grow as more teachers approach retirement: figures show that 51 per cent of 52,970 are aged 45 and over, while 38 per cent are 50 and over. Last year, 2,830 picked up pensions with 4,000 expected to join them in the coming year, according to the Scottish Public Pensions Agency.
Mike Danson, an expert on the elderly and associate dean of research at the University of the West of Scotland, said: "The recommendation will lead to younger teachers being given work in preference to older teachers. This is fundamentally ageist."
He warned of "unintended consequences" that "teachers may delay retiral plans in fear they won't get supply to top up modest pensions".
Jim Docherty, acting general secretary of the Scottish Secondary Teachers' Association, said: "We should not be employing newly-qualified teachers on supply. The work is erratic and does not pay the mortgage."
In the year to April 2008, 272 cases were accepted by employment tribunals in Scotland on grounds of age discrimination - more than double the number (143) accepted in the first half year of the implementation of the new regulations in October 2006.
Mr Docherty said: "I hope a lot of public money is not spent fighting cases in court. Instead, we should be reducing the number of students going into teacher training."