Permission for inexcusable duty

The consultation proposes the interpretative analysis of which situations fall within the permit for inexcusable duty of article 48(j) of the consolidated text of the Law on the Basic Statute of the Public Employee, approved by Royal Legislative Decree 5/2015, of 30 October, (hereinafter, TRLEBEP).

Specifically, in the context of [the XXX Public Body], permission for employees [of the XXX Public Body] with sick children who must be cared for at home is systematically denied on the grounds of inexcusable public duty, even though there is a medical report justifying this circumstance. In these cases, the only way out for parents is to have days of their own affairs or holidays, or if they have already been consumed, to suffer a payroll discount for being absent from work.

Article 48(j) of the TRLEBEP regulates permission for inexcusable duty in the following terms:

“Public officials shall have the following permits: […]

j) For a time indispensable for the fulfillment of an inexcusable duty of a public or personal nature and for duties related to the reconciliation of family and working life.”

The “inexcusable duty”, configured as an indeterminate legal concept, has been defined, as contemplated in the Manual of Procedures of Human Resources Management, published by Resolution of December 14, 1992 of the Secretariat of State for Public Administration, as that obligation incumbent on a person whose breach generates a civil, criminal or administrative responsibility; definition that has been accepted by the Courts of Justice (among others, Judgment 109/1998 of the Contentious Chamber of the High Court of Justice of Murcia).

The permit for inexcusable duty, is characterized by two notes: its residual character and its duration.

It is understood to be a residual permit, in the sense that it is applied only when there are no other permits that protect the situation that is intended to be protected through it.

And regarding its duration, as the norm points out, it is a permit that is granted for the “indispensable time”, which means that, compared to other permits that are granted for a predetermined period, this is granted only for the minimum time but necessary to meet the obligation or duty that it protects.

Given the residual nature of the leave, the duty of a personal nature or related to the reconciliation of family and working life would be fundamentally characterized by being that situation that cannot be covered by any of the permits and surpluses that may be enjoyed by officials whose concession, conditioned to the needs of the service, will be authorized or denied on a reasoned basis by the hierarchical superior.

In those cases – the majority – in which the “inexcusable” nature of the obligation or duty that is to be fulfilled under this permit has not been expressly established by a legal or agreed rule, and given its character as an undetermined legal concept that prevents, by its very nature, the establishment of a numerus clausus of cases, it will be necessary, according to the notes noted, to analyze the elements of fact that concur in each case to determine whether or not the granting of such a permit is appropriate, always taking into account the restrictive nature that the ordinance grants to this permit.

In this sense, the permit, in general, must be limited to specific situations, which do not extend over time, and which are not repeated, since, otherwise, it would seem advisable to apply other measures of conciliation or flexibilization of the working day, contemplated, essentially, in the current Resolution of April 14, 2026, of the Secretary of State for Civil Service, by which instructions on working hours and hours of staff are issued at the service of the General Administration of the State and its public agencies (hereinafter, Resolution of working hours and hours).

Therefore, the indicated extremes should serve as a guide for the corresponding Personnel Unit to resolve this matter, taking into account the concurrent circumstances in each specific case. To authorize such permission, each Personnel Unit shall require such documentation as it deems necessary, taking into account the concurrent circumstances of the specific case, to prove the fact that gives rise to an inexcusable duty.

Finally, due to the residual nature of the leave due to inexcusable duty, it is worth recalling other permits and measures provided for in the public service regulations to be enjoyed on a preferential basis, such as the leave due to serious illness of a family member referred to in Article 48(a) of the TRLEBEP and the hourly flexibility measures included in the Working Time Resolution, as well as the possibility of considering certain absences as justified on a recoverable basis, according to what may have been regulated in terms of working time and schedules.

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.