Computation of time spent on leave due to family care in order to be able to apply for leave due to particular interest

Article 89 of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees (hereinafter, TREBEP) provides in its section 1.a) the administrative situation of voluntary leave for private interest.

In accordance with the provisions of Article 89(2), career officials may obtain this leave.”when they have provided effective services in any of the Public Administrations for a minimum period of five years immediately preceding. However, the Civil Service Laws enacted in pursuance of this Statute may provide for a shorter duration of the period of service required for the career officer to apply for leave, and the minimum periods of stay shall be determined.”.

It should be noted, therefore, that the TREBEP provides for minimum, but not maximum, periods of stay in the situation of voluntary leave for reasons of particular interest.

Until the Civil Service laws implementing the Basic Statute are approved, in application of the provisions of the fourth final provision of the TREBEP, in so far as it does not contradict the provisions of the said text, the regulation of administrative situations contained in Law 30/1984, of 2 August, on Measures for the Reform of the Civil Service and in Royal Decree 365/1995, which approves the Regulations on Administrative Situations, remains applicable.

Article 16.2 of the aforementioned Regulation establishes that “to request the declaration of the situation of voluntary leave due to particular interest it will be necessary to have provided effective services in any of the Public Administrations during the five years immediately prior to the request”.

The Higher Commission of Personnel in Agreement of 13 July 1995, establishing the criteria for the application of the Regulations on Administrative Situations, considers as computable services for the purpose of granting voluntary leave for private interest:

“(a) Those provided as a career official, trainee official, interim official, temporary staff, under employment or administrative contract in any of the Public Administrations, Autonomous Bodies and Social Security Management Entities.

Those loaned in State companies that determined the situation of voluntary leave under article 29.3.a) of Law 30/1984 are excluded.

However, effective services will be considered, from the entry into force of Law 12/1995, of May 11, on Incompatibilities of members of the Government of the Nation and of the High Offices of the General Administration of the State, those provided by those who change their situation of voluntary leave by that of special services.

b) Those provided in situations of assets, services in Autonomous Communities, special services, child care leave, voluntary leave for the provision of services in the public sector, not excluded according to the criterion of the previous paragraph, expectation of destination, forced leave and temporary suspension that is not declared firm.”

Therefore, it will be possible to compute all the services provided above, including the time since his appointment as a trainee, provided that such services have been provided without solution of continuity.

For its part, family care leave is a novelty introduced in Law 39/1999, of November 5, to promote the reconciliation of family and working life of working people. This Act was adopted subsequent to the aforementioned Agreement of the Higher Personnel Commission of 13 July 1995.

Therefore, although the situation of leave due to family care is not included in this Agreement as computable services for the purpose of granting voluntary leave due to particular interest, it is possible to interpret that the time spent on leave due to family care is computable for the purposes indicated, given that its purpose and nature is analogous to the leave due to child care, which is contemplated in the Agreement, both of which are regulated jointly in Article 89.4 of the EBEP.

Finally, it should be noted that re-entry must be requested before the end of the period of leave for family care because, if it is not done before that end, it will be declared ex officio in the situation of voluntary leave for private interest, a situation in which it will have to remain a minimum of two years.

All of the foregoing is without prejudice to recalling that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.