Scotland’s largest teaching union is threatening to take industrial action where councils fail to close schools by 18 December, saying it believes they are “disregarding” teachers’ wellbeing and breaching their human rights, including the right to a family life.

In a letter to all 32 local authorities, the EIS accuses the Scottish government of interfering in local authority autonomy over whether or not to close schools early for Christmas and move to remote learning. 

The EIS, which has also written to education secretary John Swinney with its concerns about Christmas holiday arrangements, says it believes councils have been “unduly influenced by a communication from a senior civil servant”, which stated that “we expect schools to remain open”.

The letter to local authority education directors states: “The instruction is a clear attempt to frustrate any council intending to implement locally targeted remote learning and is, in our view, an interference in local government autonomy.”

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However, the union said it was of the opinion that councils had “sufficient scope” to make this decision for themselves and move to “targeted remote learning in order to protect the safety and wellbeing of their staff”.

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The EIS said it would hold councils “solely responsible” if they decided not to accede to its request that targeted remote learning begin “from at least 18 December 2020”.

It added that it believed “any such council action may breach Section 8 of the Human Rights Act (1998) which protects your employees’ right to a family life, including the right to have and maintain family relationships”.

However, a survey by Tes Scotland about any council plans to change the school holiday dates, which received responses from 20 councils, suggests most authorities do not plan to change the dates of the festive break.

Some councils are due to break up on 18 December anyway but only two councils said they had made changes to their holiday dates. East Lothian Council said in November it added an extra day to the break, meaning its schools would close on 22 December, to bring the authority in line with neighbouring councils, and help issues arising from contact tracing.

Renfrewshire Council, meanwhile, said it had agreed an extension to the Christmas holidays after staff had been required to start back early following the summer break. Its schools would close for the festive break on 18 December, it said.

Of the larger education authorities that responded to the survey, Glasgow, Fife, North Lanarkshire and South Lanarkshire all said they were still planning to close their schools on 22 December.

In some authorities - including Falkirk and North Ayrshire - it remains the case that pupils and staff will be expected to be in school on 23 December.

However, most of the authorities that responded said they would be seeking to minimise any disruption for teachers due to contact tracing.

Fife’s executive director of education and children’s services, Carrie Lindsay, said: “It is very important to us that school staff have their planned holidays without possible interruption due to the need to engage in contact tracing. We are working with our public health colleagues in Fife to ensure we have a workable system in place.   

“A move to remote learning for school days prior to the planned Christmas holidays would only be able to happen if instructed by Scottish government or on public health grounds.”

The EIS letter to education directors, from general secretary Larry Flanagan, says: “On behalf of the EIS, I would express disappointment with, and urge reconsideration of, any council’s decision to refuse the EIS request for the use of targeted remote learning. It is clear that the Scottish government’s guidance gives sufficient scope for councils to exercise their judgement in initiating targeted remote learning in order to protect the safety and wellbeing of their staff.

“To be clear, the EIS holds each council to be solely responsible for the decision not to accede to the EIS request for targeted remote learning from at least 18 December 2020. It does not accept that there was any binding Scottish government instruction or legal bar to the Council implementing targeted remote learning after 18 December, 2020.

“Our view is that any such council decision is perverse and disregards the wellbeing of its teachers to such an extent that the EIS does not believe that the council is fully discharging its duty of care to teachers.”

The letter adds: “The EIS believes that any such council action may breach Section 8 of the Human Rights Act (1998) which protects your employees’ right to a family life, including the right to have and maintain family relationships.”

In the letter to education secretary John Swinney, Mr Flanagan says that individual councils’ “legal duty of care overrides [the] attempt by the Scottish government to micro-manage local authorities, and we will continue to pursue this matter locally”.

A Scottish government spokesperson said: “As the deputy first minister [John Swinney] has said, the judgement not to alter the Christmas school holiday dates was based on public health advice to keep schools open as planned. Local authorities set their own holiday dates in consultation with parents. We would expect remote learning to be used only as a contingency where required, based on local public health advice, or where the local authority judges it is not safe to open due to a shortage of staff. Keeping schools open is in the best interests of children and helps minimise the risk of harm for our most vulnerable children.

“Teachers and school leaders need and deserve a break over the festive period. Public Health Scotland and the National Contact Tracing Centre are offering support to local authorities to deal with Covid-19 contact-tracing issues, so that local arrangements can be put in place to avoid school leaders having to deal with them over the holidays.

“The email in question from a senior civil servant to a local authority director of education restated Scottish government policy, citing public health advice and existing guidance.”

Read the EIS letters in full here.