Duration of leave due to gender violence.

Consultation is made regarding the duration of the leave due to gender violence contemplated in article 89.5 of the Consolidated Text of the Law of the Basic Statute of the Public Employee, approved by Royal Legislative Decree 5/2015, of 30 October, according to which:

“5. Civil servants who are victims of gender violence or sexual violence, in order to give effect to their protection or their right to comprehensive social assistance, will have the right to request the situation of leave without having to have provided a minimum time of prior services and without being required to stay in it.

During the first six months they will be entitled to the reservation of the job they will perform, this period being computable for the purposes of seniority, career and rights of the Social Security regime that is applicable.

When the judicial proceedings so require, this period may be extended for three months, with a maximum of eighteen, with the same effects as those indicated above, in order to guarantee the effectiveness of the right of protection of the victim. (…)”.

First, as expressly stated in the first paragraph of the article, it should be recalled that leave in favour of female civil servants who are victims of gender-based violence, which is intended to give effect to their protection or their right to comprehensive social assistance, is an administrative situation to which the staff member may be entitled without having to provide a minimum period of service and without being required to have a period of stay.

On the basis of these forecasts, the second paragraph of the regulation provides that during the first six months in this situation the civil servant has the right to reserve the job she has been performing, as well as the computation of this period of time for purposes of seniority, professional career or rights in the Social Security System to which she corresponds.

This initial period of six months is extended by the following paragraph, which allows that reservation to be extended, as well as the rights attached to it, when in order to guarantee the effectiveness of the right of protection of the victim, judicial proceedings so require.

In this case, what the Law provides is that this initial period of six months can be extended, with identical effects to those already indicated, says the precept, “for three months, with a maximum of eighteen”, raising here the question of whether the extension is up to eighteen months, regardless of the initial period - six months -, or whether, on the contrary, eighteen months is the maximum ceiling that can be reached by such a job reserve.

It is understood that the limit of eighteen months does not apply only to the extension and outside of the initial period, but that this limit operates over the entire period, so that the reservation which is initially up to six months may, where appropriate in the light of the judicial proceedings, and in order to ensure the effectiveness of the right of protection of the victim, be extended for three months, but without the extension being configured as a new and independent period, but, by its very nature, entails a period which is added or added to the initial, so that the limit of eighteen months of reservation of the same place would refer to the entire period from its inception and not to the extension period.

Looking now at the origins of this type of leave, it must be taken into account that leave due to gender violence against women civil servants was introduced into the legal system of the public service, through its inclusion in article 29.8 of Law 30/1984, of 2 August, on Measures for the Reform of the Public Service, by Organic Law 1/2004, of 28 December, on Measures of Integral Protection against Gender Violence, a precept that had a wording very similar to that now contained in article 89.5.

In this sense, if we study the normative evolution subsequent to the Organic Law 1/2004, of 28 December, either State or Autonomous, the aforementioned conclusion is confirmed.

Thus, Organic Law 9/2015, of 28 July, on the Personnel Regime of the National Police, which, with regard to administrative situations, adapts the provisions on this matter contained in the aforementioned Basic Statute of the Public Employee for National Police officials, states in its article 61, with regard to the leave due to gender violence, that the reservation period may be extended. “up to a maximum of eighteen months”.

Law 7/2005, of 24 May, on the Public Service of Castilla y León, when regulating this leave of absence, states that, if this emerges from the judicial protection proceedings, it may be extended “for periods of three months, up to a maximum of eighteen, the period in which, according to the preceding paragraph, the job reserve shall be entitled”.

Or, article 177 of Law 2/2015, of 29 April, on public employment in Galicia, regulates the possible extension “When judicial proceedings so require, this period shall be extended for periods of three months, up to a total maximum of eighteen.”

In conclusion, it is understood that leave due to gender-based violence does not require a minimum period of prior service in order to be enjoyed, nor does it require a maximum period of enjoyment, but the right to reserve the job and other rights attached to it will have a total maximum duration of eighteen months, including extensions that may be agreed when judicial proceedings require it in order to guarantee the effectiveness of the right of protection of the victim.

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.