Appropriateness of granting leave on its own behalf to interim officials

The question raised concerns the appropriateness of granting leave on its own behalf to interim officials.

To this end, it is necessary to analyse the provisions of the Civil Servants Act, approved by Decree 315/1964, of 7 February (hereinafter, LFCE), the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October (hereinafter, TRLEBEP) and Council Directive 1999/70/EC, of 28 June 1999, on the framework agreement of the ETUC, UNICE and CEEP on fixed-term work.

Thus, the license for own affairs is regulated in article 73 of the LFCE, in the following terms: “Licenses may be granted on their own behalf. Such licences shall be granted without payment, and their cumulative duration may not exceed three months in two years.”

This provision is still in force in accordance with the provisions of the Derogatory Provision and the fourth final Provision of the TRLEBEP.

For its part, Article 10.5 of the TRLEBEP states that “The general rules governing career staff shall apply to interim staff members insofar as they are appropriate to the nature of their temporary status and to the extraordinary and urgent nature of their appointment, except for those rights inherent in the status of career staff member.” Therefore, it is considered that the application of the general regime of career officials to interim civil servants, as is the case with permits, must be related to the nature of the status of the latter, in order to be able, where appropriate, to carry out the application of the same. And this does not violate the principle of non-discrimination established by the aforementioned Directive, which states that: “With regard to working conditions, workers on fixed-term contracts may not be treated in a less favourable manner than comparable permanent workers merely because they have a fixed-term contract, unless different treatment is warranted for objective reasons.”

To this end, the nature of the status of the interim officials derives from the provisions of articles 10.1 and 3 of the TRLEBEP, which read as follows:

“1. Interim officials are those who, for expressly justified reasons of necessity and urgency, are appointed as such on a temporary basis for the performance of duties pertaining to career officials, when one of the following circumstances occurs: (a) The existence of vacant positions, when coverage by career officials is not possible, for a maximum of three years, (…). b) The temporary replacement of the holders, for the time strictly necessary. (c) The implementation of programmes of a temporary nature, which may not last for more than three years, and may be extended for a further twelve months by the Civil Service Acts adopted pursuant to this Statute. d) The excess or accumulation of tasks for a maximum period of nine months, within a period of eighteen months. […]

3. In any case, the Administration shall formalize ex officio the termination of the relationship of interinity for any of the following reasons, in addition to those provided in article 63, without any right to compensation. (…) d) For the completion of the cause that gave rise to his appointment.”

According to the aforementioned precept, the appointment of interim officials is justified by the need and urgency in the development of functions in the field of Public Administrations, which, for the reasons assessed in that article, cannot be developed by career officials.

Such grounds of urgency and necessity justifying the appointment of an interim staff member may, depending on the type of interim and the concurrent circumstances, justify the exclusion from leave without pay of interim staff members, as their granting could be contrary to the grounds of necessity and urgency that justified their appointment, as they could distort the purpose and therefore the raison d ' être of the staff member. In other words, this would not be a form of discrimination prohibited, in respect of career civil servants, by the aforementioned directive, since there would be an objective circumstance that would justify it.

It should also be recalled that the granting of such leave to career officials is optional, since it is subject in any case to the public interest and the needs of the service. Thus, as the art points out. 74 LFCE, “The period during which holidays are enjoyed and the granting of licences for reasons of study and own affairs, where appropriate, shall be subject to the needs of the service.”

In this regard, the reasons of urgency and necessity, which justify the appointment and permanence of interim officials in the performance of public duties specific to career officials, could be sufficient grounds to justify the refusal of such leave on the grounds of the public interest protected and the needs of the service.

Thus, factors such as the duration of the requested leave, the duration of the staff member ' s appointment and the harm that the granting of the leave could cause to the normal functioning of public services must be taken into account for the granting or refusal of the leave, where appropriate.

All this regardless of the fact that, in the event that the aforementioned license was granted, and in accordance with Article 74 of the LFCE, the period of enjoyment of this may be modulated by the competent body in order to guarantee the correct provision of the service, with respect to the time limits indicated in Article 73 of the LFCE.

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.