Possibility that a staff member may re-enter from the leave of absence due to family care to a place in commission of services to a municipality different from that of her reserve position and therefore renounce that reservation.

The consultation is about the possibility that a civil servant may re-enter from the leave of absence due to family care to a place in commission of services to a municipality different from that of her reserve post and therefore renounce that reservation.

The consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October (TRLEBEP), establishes in article 89.4 that officials:

“(…) shall be entitled to a period of leave not exceeding three years, in order to take care of a relative who is in his 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.

The time spent in this situation will be computable for the purposes of trienniums, careers and rights in the Social Security system that is applicable. 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.”

With regard to the possibility of waiving the reservation of the job that arises in the consultation and, since it is within the first two years of reservation of its job, the Law does not contemplate this possibility.

It should not be forgotten that this leave must be incorporated into the measures aimed at protecting a family member who is in charge of him or her without, too flexible an interpretation of it, giving rise to situations that alter the general rules of the public service, relating to the provision of jobs, which may lead to fraud under the law.

Among these measures, not only is a reasonably long period granted, but all the rights of the career officer are maintained together with the guarantee of a job reservation for a period of two years, guaranteeing, otherwise “a position in the same locality and equal pay”.

In relation to re-entry, with respect to officials from a leave with a reserve of jobs as is the case under consultation and, without prejudice to the possibility of re-entering the active service to the place reserved for the official, he/she may also participate in the contests for the provision of jobs that are convened (provided that he/she meets the general conditions required and the requirements determined in the call), so that, in case of obtaining another position in a different locality, it would be this new position awarded on which the reservation would apply for the time that is lacking, inasmuch as the destinations obtained by the contest are irrevocable.

Similarly, if the staff member rejoins his or her reserved position, he or she may obtain another position in a different locality through any of the ordinary provision procedures, such as competitive examinations or the commission of services, among others.

In conclusion, the reservation of the job in the situation of leave due to family care corresponds to that of the job that was being performed, it being not possible to waive that reservation, so much so that a different interpretation of the reservation would lead to situations that would alter the general rules of public service relating to the provision of jobs.

This is reported, without prejudice to the fact that the official concerned could obtain another job during the enjoyment of this administrative situation, passing the reservation to the new position obtained.

Likewise, once you have re-entered the position you had reserved, the provision of services to another position may be agreed upon, provided that the legally established requirements are met.

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.