Possibility of enjoying leave due to the care of a relative for 3 months and, subsequently, request, if necessary, other periods of enjoyment of such leave without exceeding the maximum time stipulated by law.

The consultation is about the possibility of discontinuously enjoying the leave due to the care of a family member.

Article 89.4 of the consolidated text of the Law on the Basic Status of Public Employees approved by Royal Legislative Decree 5/2015, of 30 October (TRLEBEP), provides that:

“Career officials shall be entitled to a period of leave not exceeding three years 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, commencing from the date of birth or, where applicable, from the judicial or administrative decision.

They will also be entitled to a period of leave of no more than three years, to take 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.

The period of leave will be unique for each causative subject. When a new causative subject gives rise to a new leave, the beginning of the period of leave will put an end to the one that has been enjoyed. (…).

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.”

The period of 3 years that establishes family care leave may be enjoyed in a divided way, provided that from the date on which the first leave period begins until the date on which the last authorised leave ends, the maximum time established by the rule has not been exceeded.

The period of leave will be unique per causative subject, so it will not be possible to continue in such a situation, after exhausting the maximum three years of the same, unless it is declared as a result of the care of a new causative subject.

In this same vein, Judgment No. 333/2001, of 12 March, of the Social Division of the High Court of Justice of Murcia, interprets it in the case of labour personnel.

The Second Legal Basis of the aforementioned Judgment states that:

“(…) It is clear that the Chamber must opt for the most flexible and functional interpretation, since, apart from the fact that the judgment under appeal makes a reasonable interpretation, it states that: ‘Well, each and every one of the criteria for the interpretation of the rules provided for in Article 3.1 of the Civil Code supports the interpretative position maintained by the intervening party’. (…). A different aspect of the dynamics of the exercise of the right is the possibility of fractionation of its enjoyment, however, within the time frame (single, of three years) already begun, and therefore, within the course of it. The rule does not prohibit it. And as the aforementioned doctrine of the Balearic Labour Court indicates: «The first reading of the precept seems to imply that the worker can only go into the situation of leave once, even if he has not consumed all the time he could use. It is not this, however, the only possible grammatical interpretation. It may also be considered, in fact, that the article limits itself to establishing the right to enjoy a leave of absence of up to three years, but without imposing among its requirements that, within this maximum time frame, the faculty be exercised on only one occasion. There are also two arguments that tilt the decision towards this last point of view. One of a logical type, because if the worker has the right to place himself on voluntary leave for three continuous years, it must be concluded, “a fortiori”, which, among the less, can also choose that the validity of his work contract be suspended for shorter stretches of time, even if they are several and separate, if the care and care of the child so require. (…)

Consequently, the appeal is therefore rejected, in summary, as required by article 3 of the Civil Code, the Chamber must abide by the interpretative criterion that confers on the norm effectiveness, so that, when achieving the intended purpose, it dispels any kind of symbolic use of the law or the norm; given that, as it has had the opportunity to refer to the most authoritative doctrine; essential element, for the application of the norm and for its interpretation, is to attend to the purpose that inspires it.”

That is, the period of 3 years established for family care leave may be enjoyed in a divided way, provided that from the date on which the first leave period begins until the date on which the last authorised leave ends, the maximum time established by the rule has not been exceeded.

It is reiterated, in accordance with article 89.4 of the TRLEBEP, that the period of leave will be unique per causative subject, so it will not be possible to continue in this situation after exhausting the maximum three years of it, unless it is declared as a result of the care of a new causative subject.

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.