Possibility for a career civil servant to work during voluntary leave by family group.

The question raised is about leave by family group and compatibility with the performance of a second work activity.

In the first place, the legal framework for implementation must be analysed. Article 89.3 of Royal Legislative Decree 5/2015, of 30 October, approving the revised text of the Law on the Basic Status of Public Employees establishes that public officials shall have the right to a permit:

“Voluntary leave by family group may be granted without the requirement of having provided effective services in any of the Public Administrations during the established period to officials whose spouse resides in another locality for having obtained and being performing a permanent job as a career official or as a permanent job in any of the Public Administrations, Public Bodies and Public Law Entities dependent on or linked to them, in the Constitutional or Judicial Bodies and similar Bodies of the Autonomous Communities, as well as in the European Union or in International Organizations.

Those who are in a situation of voluntary leave by family group will not earn remuneration, nor will the time they remain in such a situation be computable for the purposes of promotions, triennials and rights in the Social Security system that is applicable to them.”

Thus, the requirements required by TREBEP to grant this type of leave are that the person requesting it must be a career official and that the cause justifying its granting be given, that is, that the spouse of the requesting official must reside in another municipality for having obtained and performing a permanent job as a career official or as a permanent employee in any of the public bodies and agencies referred to in article 89.3 of the TREBEP.

With regard to the possibility of providing services in private companies, in accordance with the regulations set forth above, nothing would prevent the official from carrying out a private activity during leave by family group.

On the other hand, in the event that the work activity that is planned to be carried out once the voluntary leave by family group has been granted is carried out in the public sector, in accordance with the requirements indicated in article 89.3 of the TREBEP, it follows that, once the civil servants have been declared in this administrative situation, there would not be an assumption of incompatibility in the terms set forth in Law 53/1984, of 26 December, on incompatibilities of personnel in the service of the Public Administrations, since they are not in active service in the body in which they have been in a situation of voluntary leave by family group.

Therefore, in the light of the foregoing, it is understood that the declaration on voluntary leave by family group is compatible with the performance of a job in both the public and private sectors.

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.