Possibility of extending the scope of application of article 59 of Organic Law 3/2007, of 22 March, for the effective equality of women and men in order to allow the adoption permit to interrupt the holidays

The question raised concerns the interruption of holidays in the event that the right to apply for permission for adoption arises.

With regard to the legal framework for implementation, article 59 of Organic Law 3/2007, of 22 March, on the effective equality of women and men, provides, in relation to holidays for staff in the service of the General Administration of the State and for related or pending public bodies, that:

“Without prejudice to any improvements that may result from agreements concluded between the General Administration of the State or public bodies linked or dependent on it with the representation of employees and employees in the service of the Public Administration, when the period of leave coincides with a temporary incapacity arising from pregnancy, childbirth or natural breastfeeding, or with maternity leave, or with its extension by breastfeeding, the public employee shall be entitled to enjoy the holidays on a different date, even if the calendar year to which they correspond has ended.

Those who are on paternity leave will enjoy the same right.”

For its part, article 50 of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees, in its second section establishes:

“When situations of maternity leave, temporary incapacity, risk during breastfeeding or risk during pregnancy prevent the start of the holiday within the calendar year to which they correspond, or once the holiday period has begun one of these situations, the holiday period may be enjoyed even if the calendar year to which they correspond has ended and provided that no more than eighteen months have elapsed since the end of the year in which they originated”

In accordance with the provisions of both precepts, it seems logical to understand, first of all, that in order for the enjoyment of the holidays to be deferred due to the coincidence with the expressly mentioned permits, it is necessary that the holidays were previously fixed and were being enjoyed.

The possibility of applying the provision of Article 50.3 of the TREBEP to permission for adoption, for guardianship for the purpose of adoption, or for the temporary or permanent reception of Article 49(b) of said legal text, does not seem feasible since the legislator has not expressly provided for it in the drafting of the article.

This article contains a remarkable list of situations related to childbirth, which may involve deferred enjoyment of holidays, all related to the mother. The only exception expressly provided for is paternity leave, which is included by the legislator at the end of article 59 of Organic Law 3/2007, of March 22, no further exception being provided, which leads to the conclusion that adoption leave does not generate the right to defer the enjoyment of holidays.

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.