Interpretation criteria regarding the application of the hourly flexibility measures to ensure the reconciliation of family and work life of public employees who have care needs with respect to children over 12 years of age, the spouse or domestic partner, relatives by consanguinity up to the second degree, as well as other people living in the same home, and who due to age, accident or illness cannot avail themselves of Article 47.2 of the Consolidated Text of the Law on the Basic Status of the Public Employee, approved by Royal Legislative Decree 5/2015, of 30 October

Last Updated: December 2025

The consultation is about the enjoyment of the flexibility measures included in article 47.2 of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees (hereinafter TRLEBEP).

Article 47.2 consolidated text of the Law on the Basic Statute of the Public Employee, Royal Legislative Decree 5/2015, of 30 October (TRLEBEP) establishes a mandate for the Public Administrations to adopt hourly flexibility measures to ensure the reconciliation of the family and work life of public employees. Specifically, this precept establishes:

“2. The Public Administrations will adopt measures of hourly flexibility to guarantee the reconciliation of family and work life of public employees who are in charge of sons and daughters under 12 years of age, as well as of public employees who have care needs with respect to sons and daughters over 12 years of age, the spouse or domestic partner, relatives by consanguinity up to the second degree, as well as other people who live in the same home, and who due to age, accident or illness cannot fend for themselves."

This provision was incorporated by Article 3 of Royal Decree-Law 2/2024, of 21 May, to complete the transposition into the internal legal order of Directive (EU) 2019/1158 of the European Parliament and of the Council, of 20 June 2019, on the reconciliation of family life and professional life of parents and carers, and repealing Council Directive 2010/18/EU.

Article 9 of that directive, on flexible working arrangements, provides as follows:

"1. Member States shall take the necessary measures to ensure that workers with children up to a certain age, which shall be at least eight years, and carers, have the right to request flexible working arrangements to take care of their care obligations. The duration of these flexible working formulae may be subject to a reasonable limit.

2. Employers shall consider and respond to applications for flexible working arrangements referred to in paragraph 1 within a reasonable period of time, taking into account both their own needs and those of workers. Employers must justify any denial of these requests, as well as any postponement of such formulas.

3. Where the duration of the flexible working arrangements referred to in paragraph 1 is limited, the worker shall be entitled to return to his or her original working model at the end of the agreed period. The worker will also have the right to request to return to his original work model before the end of the agreed period whenever a change in circumstances warrants it. Employers will study and address requests to return early to the original work model taking into account both their own needs and those of the workers.

4. Member States may make the right to apply for flexible working arrangements subject to previous periods of work or to an age which may not be possible.

be longer than six months. Where there are successive fixed-term contracts within the meaning of Directive 1999/70/EC with the same employer, the sum of all such contracts shall be taken into account for the calculation of such periods."

As established in the preamble of Royal Decree-Law 2/2024, of 21 May, the object of the reform is:

“...expressly include flexible forms of employment as an effective exercise of the right to conciliation in respect of carers. To this end, Article 47 of the aforementioned legal text is amended to fully comply with the provisions of Article 9 of Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on flexible working arrangements.

(...) Flexible working arrangements, together with other measures relating to working time, derive from the self-organisational power of each Public Administration and are provided for in the instruments regulating the working time of each Administration. With this amendment, these conciliation measures are being provided with a legal basis, in order to guarantee uniformity in the application of these instruments, as well as to provide for their basic application to carers who, under the terms of the directive, will be those public employees who provide care to a person living in the same home who needs or needs care for a serious medical reason.”.

The establishment of working hours and working hours derive from the power of self-organization of each Administration, but this has not been an obstacle to the fact that, since the beginning of the century, hourly flexibility measures for conciliation reasons were already widespread in all Public Administrations.

The objective of the reform was to provide a normative basis that would allow, since its entry into force, the application of those new elements introduced by the Directive without the need to operate cascade reforms at each level of the Administration of its instruments already implemented and become a normative minimum, as a guarantee that the flexibility measures adopted by the Administrations in the exercise of their power of self-organization are always respectful of the content of the Directive.

Thus, the regulation of each Member State must ensure the existence of flexible working formulae, including carers (Article 9.1), the justification of refusals or postponements (Article 9.2), and the right to revert to its original working model (Article 9.3).

Thus, Article 47.2 of the TREBEP contains an obligation, not a power, addressed to all Public Administrations to adopt measures in the field of hourly flexibility, the basis of which lies in Articles 47 and 51 of the TREBEP, in which they attribute to each Public Administration the exclusive competence to establish, within the scope of its internal organization, the legal regime applicable to the working time of public employees in its service.

Therefore, by virtue of this authorization, it is up to each Administration to determine, in accordance with its own functional and organizational needs, the specific conditions that will govern the distribution and duration of the working time, respecting in any case the general principles established by the basic State legislation.

Notwithstanding the foregoing, although the wording of Article 47.2 of the TREBEP formulates an obligation addressed to the Public Administrations, its content cannot be considered merely programmatic or lacking in direct effectiveness. In fact, this precept includes an imperative mandate whose objective is the effectiveness of a subjective right of public employees: the right to adopt measures that guarantee the reconciliation of personal, family and work life, also recognized in article 14(j) of the TREBEP itself as one of the individual rights of public employees with content of benefits.

In this way, the subjects to whom these flexibility measures are addressed may apply for them regardless of whether they are implemented by the corresponding Public Administrations.

In the case of the General Administration of the State, this regulation is found in the Resolution of February 28, 2019, of the Secretary of State for Civil Service, which provides instructions on working hours and hours of staff in the service of the General Administration of the State and its public agencies. In particular, paragraph 8 of that resolution contains several measures aimed at improving the reconciliation of personal, family and professional life, among which are hourly flexibility measures.

The wording should be interpreted within the meaning of the Directive, and the provisions of Article 47.2 of the TREBEP as long as no specific updating of the Instructions is carried out.

Thus, an integrative and finalist interpretation of the legal system, in accordance with Articles 3.1 of the Civil Code, which imposes an interpretation of the rules according to their spirit and purpose, leads to the extensive application of the one-hour flexibility measure contained in section 8.1 of the Resolution for carers.

Thus, this section includes the hourly flexibility of one hour in the fixed working hours for public employees who are in charge of elderly people, children under 12 years of age, people subject to guardianship or fostering under 12 years of age or people with disabilities, as well as those who have direct responsibility for relatives with serious illness up to the second degree of consanguinity or affinity.

This is justified in the identity of reason of both precepts since the purpose of Article 47.2 TREBEP, that is, to ensure the conciliation of those who have care responsibilities, fully coincides with the purpose of the measures provided for in paragraph 8.1 of the Resolution. Thus, both rules pursue an identical result, which is to allow a reasonable adaptation of working hours to make care obligations compatible with the provision of service.

Applying this interpretative criterion, it prevents the emptying of the content of Article 47.2 of the TRBEP while specific measures are adopted by the respective administrations, ensuring the effectiveness of the rights established in the regulations on public employment, in particular, on conciliation.

As for the beneficiaries of such measures, the precept differentiates between:

• Public employees who are responsible for children under 12 years of age.
• Public employees with care needs with respect to other people who live in the same home and who, due to age, accident or illness, cannot care for themselves.

It follows from this wording that the legislator establishes a differentiated treatment between children under 12 years of age and other people. Thus, in the case of children under 12 years of age, the norm presumes the needs of care linked to age, not establishing additional requirements to it.

A different issue is the second case, which includes the figure of the caregiver either of sons or daughters over 12 years of age, spouse or domestic partner, family members due to consanguinity up to the second degree, or other people who live in the same home and who, due to age, accident or illness, cannot fend for themselves. In this case, the needs of care are not presumed, but must be proven linked to reasons of age, accident or illness, emphasizing that the people who need the care cannot fend for themselves.

In this regard, it should be pointed out that the presumption we mentioned earlier in relation to children under 12 years of age is not established in relation to those over 12 years of age. Thus, the precept expressly adds an additional condition, referring to those who “for reasons of age, accident or illness they cannot fend for themselves”.

As noted above, the concept of carer in the directive is that of a worker who provides care or assistance to a family member or a person living in the same household as the worker and who needs important care or assistance for a serious medical reason, as defined by each Member State.

Therefore, for sons and daughters over the age of twelve, the mere age is not enough to justify the need for hourly flexibility measures. The precept expressly adds an additional condition, referring to those who “for reasons of age, accident or illness cannot fend for themselves”, so that the need for care is not automatically presumed by age, but the lack of autonomy that requires such care must be proven by valid means of proof.

This is consistent with the interpretation regarding the expression “for reasons of age, accident or illness they cannot fend for themselvesArticle 46.3 of Royal Legislative Decree 2/2015, of 23 October, approving the consolidated text of the Law on the Status of Workers, in accordance with Supreme Court Judgment 161/2021, of 5 February 2021, rec. No 2102/2018.

Therefore, not every person over 12 years of age automatically falls within the scope of protection, but it is necessary to prove the concurrence of the condition of caregiver, based on the existence of care needs, derived from a specific circumstance that affects their personal autonomy (such as, for example, disability, illness, accident or dependence).

Therefore, in order to request the flexibility measures, the interested party must prove, through the appropriate documentation, that he/she has the status of caregiver, while the person in his/her care cannot stand on his/her own due to reasons of advanced age, accident or illness, so that the requested measure responds to a situation of real need and not to a mere convenience.