Edinburgh City Council is facing a legal challenge in a test case over the right to backdated accrued holidays for teachers on maternity leave. The outcome could affect hundreds of teachers across Scotland.
The two largest teaching unions, the EIS and SSTA, are joining forces to bring the action against the council. They are backing the cases of a few hundred teachers in 14 local authorities who have been denied the chance to accrue up to 66 days' holiday while on maternity leave between late 2008 and 2010.
The move follows a European Court of Justice ruling that an employee who had taken a year's maternity leave was still entitled to accrue the holidays she would have had over that period.
The European case was recognised by the UK in October 2008, but the Scottish Negotiating Committee for Teachers did not agree the change to teachers' conditions of service until May 2010.
Fourteen councils have refused to settle claims of teachers affected during the 18-month period up to the SNCT's enactment of the change. The remaining 18 local authorities have settled backdated claims to 2008.
The EIS and SSTA plan to back the cases of a handful of teachers before an employment tribunal in the New Year, with Edinburgh as the first council targeted. If the tribunal finds in the teachers' favour, the ruling will effectively set a precedent for the cases pending against the other 13 councils.
Drew Morrice, assistant secretary of the EIS, estimated there were about 200 cases pending. "The unions expect that if these cases succeed, compensation would be provided by the council for the loss of a contractual entitlement," he said.
Ann Ballinger, SSTA general secretary, added: "It seems extremely unfair that an arbitrary date for the printing of a piece of paper should be used to determine whether or not they receive benefits which the European Courts have decided they are entitled to."
The legal entitlement was agreed in 2008, she said, but it took "an inordinate amount of time" for the SNCT to agree the exact wording of the changes to teachers' conditions of service. "It seems unfair that any employer would use that as a reason not to pay out an entitlement to rights," she added.
A spokesman for Edinburgh City Council said it would be inappropriate to comment, given that the case was ongoing.
In 2010, Cosla sent a letter to council finance directors warning of the "major financial implications associated with the new maternity regulations", which were significant for teachers because they have longer holidays than the statutory minimum of 28 days.
A Spanish woman, Merino Gomez, took her employer, Continental Industrias, to court after it refused to grant her leave following her return to work after maternity leave.
In Stringer v HMRC, former employees of Her Majesty's Revenue and Customs won their claim against the department after requests for holiday and holiday pay were rejected, due to long-term sick leave.