The right of veto by the Roman Catholic Church over the appointment of teachers in denominational schools looks likely to be challenged in court.
Scotland's largest teaching union says draft new government regulations could mean the church losing its absolute right to "approve" or "disapprove" a teacher applying to a Catholic school. The church disagrees, but both sides agree, for clarification, a test case may have to be taken to the courts.
The Educational Institute of Scotland almost challenged Catholic selection procedures four years ago, but stepped back because the Human Rights Act was looming. This would have centred on a non-Catholic "supply" teacher in a Catholic school who, when a permanent post was advertised, was not offered an interview.
Now, regulations drafted by the Department of Trade and Industry would allow an employer to discriminate on religious grounds when selecting an employee by arguing a particular religion or belief is a "genuine occupational requirement".
The church argues all teachers in Catholic schools would fall under this category and the regulations would therefore have no effect. But the EIS said it would support a second interpretation: that the church should be subject to the same test as other employers, having to show that "being of a particular religion or belief is a genuine and determining occupational requirement for the job" with questions of whether it should be a requirement to be a Catholic to teach certain subjects, eg computing studies, or geography.
The union accepts that there are "sensitive" areas within a Catholic school, for head or religious studies teachers, but is concerned about selection procedures when a school has closed or merged, arguing that "redundant" non-Catholic teachers are discriminated against.
In its response to the DTI consultation, the EIS argues employment discrimination on religious grounds "has been the source of ... irritation and anger". Peter Kearney, church media spokesman, said legal advice had been taken and that "we believe that the position the church has in relation to approval will not be affected".