Criterio interpretativo actual del término “distinta localidad” a efectos del permiso del artículo 48 a) TRLEBEP.

The consultation considers the current criterion of interpretation of the term “different locality” for the purposes of the permit of article 48 a) of the consolidated text of the Law of the Basic Statute of the Public Employee (hereinafter, TRLEBEP), approved by Royal Legislative Decree 5/2015, of 30 October.

Article 48.a) of the TRLEBEP has been modified by Royal Decree-Law 5/2023, of 28 June, which adopts and extends certain measures in response to the economic and social consequences of the Ukrainian War, support for the reconstruction of the island of La Palma and other situations of vulnerability; the transposition of European Union Directives on structural modifications of commercial societies and conciliation of the family life and professional life of parents and caregivers; and the execution and enforcement of European Union law, in order to comply with the European Parliament’s permit (Article 4820).

In that regard, the wording of that article reads as follows:

“a) By serious accident or illness, hospitalization or surgical intervention without hospitalization that requires home rest of the spouse, domestic partner or relatives up to the first degree for consanguinity or affinity, as well as of any other person other than the previous ones who lives with the official or official in the same home and requires the effective care of that, five working days.

In the case of serious accident or illness, hospitalization or surgical intervention without hospitalization that requires home rest, of a relative within the second degree of consanguinity or affinity, the permit will be four working days.

In the case of death of the spouse, partner or relative within the first degree of consanguinity or affinity, three working days when the event occurs in the same locality, and five working days, when it is in another locality. In the case of death of a relative within the second degree of consanguinity or affinity, the permit will be two working days when it occurs in the same locality and four working days when it is in another locality.”

In this sense, when the factual situation is the serious accident or illness, hospitalization or surgical intervention without hospitalization that requires home rest, only the degree of kinship indicated in the norm must be considered and the permit varies only depending on whether the factual situation occurs in the spouse, common-law partner or first- or second-degree relatives.

Therefore, the repeated criterion of this Board of Directors of the extension of the number of days of the permit in the case of a ‘different locality’ only applies now to the case of the factual event of the death of the relatives indicated there.

And this criterion is now in force for this single event, the death, thus facilitating the displacement of the official to the place where the event that motivates the permit has occurred.

In fact, without taking into account the additional time required for travel, in some cases, it would not be possible to address the personal need to be met by granting the permit.

However, this additional time is not required if the death occurs in the municipality where the personal residence or official residence (municipality where the work center where he/she works is located) of the official is located, due to the fact that the official makes daily commute between one and the other to attend his/her work, thanks to the proximity and ease of communication between the two.

In this sense, and with regard to this permit to be enjoyed in another locality, it should be remembered that the public official is responsible for the management of the general interests that in each case are entrusted to him so that, derived from this situation, the permits and licenses contemplated by the legal system are not presented as absolute; rather, they must be able to be moderate in those cases in which their concession may alter the good and correct functioning of the corresponding public service.

It should be noted that article 52 of the TRLEBEP establishes, within the duties of public officials, that of dedication to public service.

In this case, the attempt to allege as a different locality that the event occurred in the municipality of personal residence of the official and not the municipality of destination would clearly be an abuse of right prohibited by article 7 of the Civil Code.

Consequently, only if the event occurred in a third place, which is different from the place of work and residence, shall the permit for the event of death be granted for five working days.

Finally, it must be taken into account that for the extension from three to five working days, Article 48(a) of the TRLEBEP establishes no condition other than that the event occurs in “different locality”, without establishing any requirement of kilometric distance, existing means of transport, or other extremes, to establish or not the right to the extension of the permit.

Therefore, it is not possible to introduce by interpretative means more requirements for the granting of the permit than those established by the legal system at any given time.

In addition, the specificity of the General State Administration, whose staff provide services throughout the national territory and abroad, must be taken into account, which prevents the establishment of a general criterion applicable to all cases.

In this regard, the judgments of the Administrative Litigation Division of the TSJ of the Basque Country of 5 February and 21 October 2009, and of the TSJ of Madrid of 2 March and 5 July 2012 confirm the above criterion.

Therefore, and until the legislator introduces more requirements or criteria for the application of the permit, there is no more limitation than that established when interpreting what is understood by “different locality” according to the arguments already adduced.

Based on the foregoing, it is concluded that, when the factual event is a serious accident or illness, hospitalization or surgical intervention without hospitalization that requires home rest, only the degree of kinship indicated in the norm must be considered and the permit varies only depending on whether the factual event occurs in the spouse, common-law partner or first- or second-degree relatives, with the duration of 5 or 4 working days as provided in the norm.

On the other hand, in relation to the fact of death of the subjects indicated in the norm, in the light of the jurisprudence cited, which confirms the criterion of this Directorate-General, Article 48(a) of the TRLEBEP refers indistinctly to the locality of destination and the locality of residence, proceeding only with the extension of the permit from three to five working days or from two to four working days, when the event occurs in a third locality, different from that of habitual residence or work of the official, without there being any incidence to these effects that these localities form part or not of a metropolitan area; and all this provided that the extension of a permit or abuse does not entail.

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.