Legal obstacles to changing teachers' conditions of service may make it impossible to sack incompetent staff without new legislation, according to a briefing paper prepared for the local authorities.
Education directors and chairs, meeting in Edinburgh today (Friday), may now press the Scottish Office for powers to implement proposals unveiled three weeks ago for incompetent teachers to be dismissed "speedily but fairly".
They will point out that recent attempts to introduce new disciplinary procedures have been thwarted by employment protection regulations. These guarantee job rights when staff are forced to transfer from one employer to another (in this case from the former regional councils to the unitary authorities).
Edinburgh is one of three councils that decided to bring procedures for dismissing teachers into line with those for other employees, but now faces a challenge from the Educational Institute of Scotland at an industrial tribunal.
Councils are also concerned that the unions could block changes to teachers' conditions, such as easier dismissal, which depend on legally enforceable agreements in the Scottish Joint Negotiating Committee.
The briefing paper acknowledges that resolving these potential obstacles is ultimately a matter of law. If the courts rule that existing procedures can be changed only by agreement, either locally or in the SJNC, and both sides fail to reach agreement, the Government will have to step in to ensure that dismissal procedures are simpler and more effective, the paper states.
Councils may take the view that the best course would be for the Government to state its views and threaten legislation.
The paper also urges a clear distinction to be drawn between appraisal and disciplinary procedures. Appraisal reports could be misleadingly positive, it states, and teachers could successfully use this in their defence if their competence was called into question.