Criteria applicable to the flexibility of the schedule for childcare

The issue raised concerns the application of the hourly flexibility measure contained in section 8.1 of the Resolution of 14 April 2026, 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.

Thus, this paragraph establishes that measures may be adopted for the reconciliation of family and working life aimed at:

“Public employees who are in charge of elderly persons, children under 12 years of age, persons subject to guardianship or foster care under 12 years of age or persons with disabilities, as well as those who have direct responsibility for relatives with serious illness up to the second degree of consanguinity or affinity, shall have the right to make the fixed working time they have established more flexible in one hour per day. This right may also be exercised in the year in which the minor reaches the age of 12 years.”

The reference document raises the question of whether the aforementioned measure consists of an unconditional right of civil servants or whether, on the contrary, their exercise may be conditioned by needs of the service or the primacy of general interests over individuals when they come into conflict.

In the first place, the legal framework for implementation must be analysed. The aforementioned measure is regulated in section 8 of the working time instructions, in the following terms:

“8. Measures for the reconciliation of family and working life.

measures may be taken to reconcile family and working life, within the framework of service needs, in the following cases:

8.1 Public employees who are in charge of elderly persons, children under 12 years of age, persons subject to guardianship or placement under 12 years of age or persons with disabilities, as well as those who have direct responsibility for relatives with serious illness up to the second degree of consanguinity or affinity, shall have the right to make the fixed working time they have established more flexible at one hour per day. This right may also be exercised in the year in which the minor reaches the age of 12 years (…. )” .

As can be seen, the criterion that defines the regulation of the measures for the reconciliation of family and working life is that of the needs of the service, thus establishing that any measure in this regard will be adopted within the framework of the needs of service.

In view of the above, the issue raised focuses on the measure regulated in paragraph 8 of the working time instructions, which aims to make the working day more flexible in one hour per day in order to facilitate the reconciliation of public activity and private life.

But this attempt to bring the two situations together cannot lead to the interruption, reduction or worsening of the public services entrusted. The general interests must always be taken into account, as well as the continuity and guarantee in the effective provision of the public service in the face of time flexibility or any other alteration of the working time system that may be detrimental to or detrimental to the general interests and rights of citizens.

In this way, the hourly flexibility measures for conciliation must be combined with the needs of the service. With regard to this concept, the Judgment of the Administrative Litigation Division of the National High Court of 12 November 2008 (appeal 96/2008) states that:

“the aforementioned concept of ‘needs of the service’ constitutes an indeterminate legal concept that grants the Administration a margin of appreciation, in order to specify the circumstances that it considers to be present in the case for the exercise of that power, having to provide to the file the evidentiary material necessary to prove that its decision is supported by a factual reality that guarantees the legality and timeliness of the same, as well as its congruence with the reasons and purposes that justify it”.

Therefore, for the correct application of the hourly flexibility it is necessary to take stock of the two interests at stake: on the one hand, the general interest, which is satisfied and guaranteed by the provision of public service by the official; and on the other, the reconciliation of the family and professional life of the public employee.

Therefore, and in conclusion, it is the corresponding Personnel Unit that should assess the appropriateness of the use of the hourly flexibility measure in response to the needs of the service; therefore, it could limit this exercise. for duly justified reasons relating to the operation of the services, in order to safeguard the general interest entrusted to it and the provision of that public service.

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.