Compatibility of leave due to child care and performance of second public activity.

The question raised relates to the administrative situation of a civil servant who, while on leave for child care, is appointed as an interim civil servant in another Administration.

Before addressing the issue raised, the legal framework for implementation needs to be assessed. Article 89.4 of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees (TREBEP) provides in its section that career officials:

“They shall be entitled to a period of leave of absence not exceeding three years in order to care for each child, whether by nature or by adoption, or for each minor subject to care for the purpose of adoption or permanent fostering, starting from the date of birth or, where appropriate, from the judicial or administrative decision. They will also be entitled to a period of leave of no more than three years, to attend to the care of a relative who is in their care, up to the second degree inclusive of consanguinity or affinity that for reasons of age, accident, illness or disability cannot stand on its own and does not perform paid activity.”

This administrative situation grants a series of rights to civil servants, such as: “the length of time spent in this situation will be computable for the purposes of trienniums, careers and rights in the applicable Social Security system. The job performed shall be reserved for at least two years. After this period, the reservation will be made to a position in the same locality and with equal pay.”

According to the fourth final provision of the TRLEBEP “Until the Civil Service Laws are enacted and the development regulations are in force in each Public Administration, the current regulations on the management, planning and management of human resources shall remain in force as long as they do not conflict with the provisions of this Statute”. Consequently, for the purposes of surpluses, article 14 of the Regulations on Administrative Situations, approved by Royal Decree 365/1995 of 10 March, continues to apply, which states that:

“The granting of child care leave shall be made after the petitioner has stated that he or she is not engaged in any activity that could impede or impair the personal care of the minor child.”

Thus, it is considered whether the administrative situation of leave to care for children is compatible with the appointment as an interim civil servant in another Administration. That is, if the leave to care for children is compatible with the exercise of a second public activity.

In this regard, it is noted that the legislator has established specific legal and regulatory measures to prevent the child care leave from being used for purposes other than the purpose that justifies the existence of this administrative situation, which, as has been said before, is privileged in relation to other situations. It is therefore an obligation for the requesting official to make a prior declaration expressly stating that he is not engaged in any other activity that might impede or impair the personal care of the minor child. In particular, the aforementioned article 14 of Royal Decree 365/1995 obliges to declare, before the granting of leave, that no other activity is performed that impairs the care of the minor.

In this way, it is conceived not only as a guarantee of the care of the child, but also as a guarantee mechanism for the correct use of the regulations on administrative situations, in order to avoid that cases of fraud of law may occur, if the situation of child care leave is used to avoid the transition to another administrative situation when the corresponding event is given for it.

The purpose of this administrative situation, which entails a series of rights that do not assist other administrative situations, such as voluntary leave, is exclusively to enable the care and attention of the minor child. This is why its concession is subject to the fact that this purpose is not violated. It is therefore up to the body that declared the situation of leave to assess whether the exercise of a certain activity can prevent or impair the personal care of the child under three years of age.

In this regard, the body must assess issues such as the activities carried out in the new job, as well as the working hours and other working conditions in order to determine whether the appointment as an interim civil servant and the care of the child is compatible, in order to avoid legal fraud.

On the other hand, it should be noted the measures that could be applied in the case of understanding the unit that the child care leave is not compatible with the performance of a position as an interim civil servant.

In this particular case, the staff member has accessed a new post in the public sector, as an interim staff member, which could, in the view of the staff unit, be inconsistent with child care leave. In order to make this judgment, in any case, it is necessary that the personnel unit requires the staff member to obtain information on the new job and that the due compatibility between the leave and the performance of the new job is justified.

Once the necessary elements of judgment are in place, in the event that it is understood by the personnel unit that the child care leave is not compatible with the performance of a position as an interim official, the official must be notified of the end of the leave to proceed to re-entry within the legally established time limit or request the passage to the administrative situation compatible with the development of this activity, which is the voluntary leave for private interest.

In our system of administrative situations, voluntary leave due to particular interest appears as a right granted to the official, conditioned to the fulfillment of a series of requirements –both for his statement and for his stay in the situation–, always subject to the proper functioning of the service. However, this situation has another aspect, derived from the failure to comply with the deadlines imposed to apply for re-entry into active service, once the causes that determined the transfer of the official to other administrative situations have disappeared, as established in article 89.2 of the TREBEP in the following terms:

“Voluntary leave shall be declared ex officio for private interest when the cause that determined the transition to a situation other than that of active service has ended, the obligation to apply for re-entry into active service is breached within the time limit that is determined by regulations.”

In these cases, in view of the impossibility of obliging a staff member who does not apply for re-entry to active service within a certain period of time, the legal system provides that, in the event of non-compliance, the impossibility of doing so is triggered as a consequence until the minimum period of stay in the situation of voluntary leave, that is, within two years.

Thus, the declaration of leave is determined by the Administration itself that “ex lege” imposes this situation as a consequence of the failure to comply with the obligation to apply for re-entry into active service within the time limits established for it, preventing its re-entry for at least two years.

Consequently, those officials who fail to comply with the obligation to apply for re-entry into active service within the period established by regulations, once the cause that determined the transition to a situation other than that of assets has ended, must be declared on voluntary leave for private interest without having to gather a minimum of years of effective services in any of the Public Administrations.

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.