Enjoy a part-time birth permit.

The question raised concerns the conditions under which the birth permit for the biological mother must be enjoyed in the event that she chooses to enjoy it on a part-time basis.

In the first place, the legal framework for implementation must be analysed. Article 49 of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Statute of the Public Employee regulates the birth permit for the biological mother by establishing different possibilities of enjoyment in the following terms:

a) Birth permit for the biological mother: it will have a duration of sixteen weeks, of which the six weeks immediately after childbirth will in any case be mandatory and uninterrupted rest. This leave will be extended by two more weeks in the case of disability of the son or daughter and, for each son or daughter from the second in the case of multiple birth, one for each of the parents.

However, in the event of the death of the mother, the other parent may make use of the totality or, where appropriate, of the part that is on leave.

In the event that both parents work and after the first six weeks of compulsory rest, the period of enjoyment of this leave may be carried out at the will of the parents, interrupted and exercised from the end of the compulsory rest after childbirth until the son or daughter reaches twelve months. In the case of interrupted enjoyment, a notice of at least 15 days will be required for each period of enjoyment and will be carried out for full weeks.

This permit may be enjoyed full-time or part-time, when the needs of the service allow it, and in the terms that are determined by regulations, in accordance with the rules established in this article.

In cases of premature birth and in those in which, for any other reason, the neonate must remain hospitalized after delivery, this permit will be extended in as many days as the neonate is hospitalized, with a maximum of thirteen additional weeks.

In the event of the death of the son or daughter, the period of duration of the leave will not be reduced, unless, once the six weeks of mandatory rest have ended, re-entry to the workplace is requested.

During the enjoyment of this permit, once the mandatory rest period has ended, it will be possible to participate in the training courses convened by the Administration.

For the purposes of this section, the term biological mother also includes pregnant trans persons.

Thus, the third paragraph of Article 49(a) of the TREBEP provides that the birth permit may be enjoyed full-time or part-time, when the needs of the service permit, and in the terms determined by the regulations.

Thus, the regulatory regulation is found in Royal Decree 180/2004, of 30 January, which adopts measures for the reconciliation of work and family life in relation to the part-time enjoyment of the permits included in article 30.3 of Law 30/1984, of 2 August, on Measures for the Reform of the Public Service, of application for the fourth final provision of the TREBEP, in so far as it does not contradict the provisions of this text.

In view of the above, the question raised focuses on how the birth permit is to be enjoyed in its part-time mode. To do this, we must comply with the provisions of Royal Decree 180/2004. The questions raised are analysed as follows:

1. Weeks in which you can enjoy the part-time permit.

The number of weeks that can be worked part-time during the enjoyment of maternity leave would be ten when the needs of the service allow it, given that the first six weeks immediately after childbirth are mandatory rest for the mother, so it is understood that in this case no activity can be carried out either totally or partially, an aspect that confirms article 3 of Royal Decree 180/2004, which provides:

“The part-time enjoyment of the permits included in section 3 of article 30 of Law 30/1984, of 2 August, will comply with the following rules:

a. This right may be exercised by both the mother and the father, and in any of the cases of simultaneous or successive enjoyment of the rest period.

In the event of childbirth, the mother will not be able to use this form of leave during the six weeks immediately after childbirth, which will be mandatory rest.”

2. Duration of the permit in case of part-time enjoyment.

Regarding the calculation of the total duration of the permit, the period of 10 weeks would be extended in proportion to the proposed day. In this regard, Article 3(b) of Royal Decree 180/2004 states:

“The period during which the permit is enjoyed will be extended proportionally depending on the working day that is carried out, without, in any case, exceeding the duration established for the aforementioned permits.”

3. Limitations on the enjoyment of the permit.

Article 3 c) and d) of Royal Decree 180/2004 specifically establishes two limitations on the enjoyment of the birth permit in its partial form:

c) “The enjoyment of the permit in this modality will be uninterrupted. Once agreed, the agreed regime may only be modified by a new agreement between the competent organ for the granting of permits and the official concerned, on the latter ' s initiative and due to causes related to his or her health or that of the minor.

(d) During the period of part-time leave, the official may not perform extraordinary services outside the working day that he or she is required to perform in this manner."

Just as it prohibits the official who enjoys this permit from performing extraordinary services outside the working day that he/she must comply with part-time, it also establishes the incompatibility of the same and other permits that could be requested simultaneously such as breastfeeding, the reduction of the working day by legal guardianship or the leave to care for children and other dependent family members as indicated in article 4 of the aforementioned Royal Decree and has confirmed the jurisprudence in various pronouncements such as the judgment of the TSJ of Catalonia of May 20, 2004; STSJ of Catalonia of November 7, 2004; or the judgment of the TSJ of Madrid of September 27, 2004.

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.