How to enjoy the reduction of the day for child care

The issue raised concerns the application of the legal guardianship permit for the care of children under 12 years of age, in relation to, on the one hand, the percentage of reduction in the working day to be applied, and on the other, if the reference to the term “working day” made by article 48.h) of Royal Legislative Decree 5/2015, of 30 October, approving the revised text of the Law on the Basic Status of Public Employees (TREBEP) is referred to daily or weekly working day.

In the first place, the legal framework for implementation must be analysed. Article 48(h) of the TREBEP thus recognizes the permission of public officials:

“For reasons of legal guardianship, when the official has the direct care of a person under 12 years of age, an elderly person requiring special dedication, or a disabled person who does not perform paid activity, he will be entitled to a reduction in his working day, with the corresponding reduction in his remuneration.

The same right shall apply to an official who needs to take care of a relative directly, up to the second degree of consanguinity or affinity, who for reasons of age, accident or illness cannot care for himself or herself and who does not perform paid activity.”

According to the fourth additional provision of the TREBEP, until the Civil Service Laws and the development regulations are enacted, the current regulations on the management, planning and management of human resources will remain in force in each Public Administration as long as they do not oppose the provisions of the EBEP.

Therefore, it must be understood that it continues in force as long as it does not contravene the provisions of the EBEP article 30.1.g) of Law 30/1984, of 2 August, on Measures for the Reform of the Public Service, as well as Royal Decree 2670/1998, of 11 December, which develops article 30.1.f) of Law 30/1984, of 2 August, on Measures for the Reform of the Public Service. The Single Article of Royal Decree 2670/1998, of December 11, provides that:

“1. An official who, for reasons of legal guardianship, has a minor under six years of age in his direct care, an elderly person requiring special dedication or a mentally, physically or sensory handicap who does not perform a paid activity, shall be entitled to a reduction of up to one half of the working day, with a proportional reduction in remuneration.

2. The calculation of the hourly value applicable to such reduction shall be based on the totality of the monthly full remuneration received by the official divided by the number of calendar days of the corresponding month and, in turn, this result by the number of hours that the official has an obligation to meet, on average, each day.

3. Where the organisation of the work of the unit so permits, the staff member shall be granted the part of the working day that suits his or her personal interests.”

Taking into account the above, the first question raised focuses on the percentage to which the reduction of working hours can be applied, taking into account the literal tenor of Royal Decree 2670/1988, will be of up to one half of the working day, with the proportional reduction of remuneration.

With regard to the second consultation, i.e. the clarification of the term “working day”, it is reported that the staff member may, in principle, choose the part of the day in which he or she will benefit from the reduction in accordance with his or her personal interests, but the Administration is empowered to modify that choice of staff member if the organizational needs of the unit in which he or she works so require.

Thus, the Third Legal Basis of the Judgment of the Third Section of the Administrative Litigation Chamber, Judgment No. 842/2007, of December 7, which establishes in relation to Royal Decree 2670/1998, of December 11 that:

“This rule conditions the choice by the official of the part of the working day that suits his interests, to be permitted by the organization of the work of the unit, which means that the granting of the reduction of the working day is obligated for the Administration, without any margin for discretionary assessment, if the budgets of facts set forth in Article 30.1(g) are met, that is, that an official for reasons of legal custody has in his direct care a minor of twelve years, but that nevertheless the choice by the official concerned of the part of the working day in which the hourly reduction is to be carried out that suits his personal interests, is conditional on the organization of the work or other words.

the regulation of the permit forms a subjective right of the official not subject to resolute conditions or modal burdens, since if so were the Law or Royal Decree 2670/1998 so they would say, and the truth is that they do not limit the right to the hourly reduction rather than the maximum age of the minor (six or twelve years), so that in the absence of those restrictions in the legal configuration of a permit, it is not possible to restrict it by the administration without any legal basis, and this is so to the point that the number 3 of the single article of the Royal Decree, precisely regulates the time limit that the granting to the time slot in which the official can enjoy his right to reduction of working hours (…)”.

By analogy to the question raised, we can also refer to Judgment No. 112/2005, of April 18, of the Social Court No. 4 of Malaga, which provides in its Third Legal Basis that:

“In any case, a case similar to that submitted for consideration by this Court (…) has been resolved by the Social Chamber of the High Court of Justice of Andalusia, based in Malaga, in the sense of understanding that the rule then invoked, Article 37.5 of the Workers’ Statute –corresponding to the conventional precept analyzed in these proceedings, the repeated article 33.1.g)- what it contemplates is a daily reduction in working time, couple with the care of minor children, which the Court understands must also be daily (judgment of the Chamber, cited by the defendant body, No. 582/01, of 22 March).”

From both judgments it can be interpreted that the term “working day” refers to “daily working day”, while the Judgment of the Third Section of the Administrative Litigation Chamber, Judgment number 842/2007, of December 7, refers to “the time slot in which the official can enjoy his right to reduction of working time” and Judgment No. 112/2005, of April 18, of the Social Court No. 4 of Malaga in relation to Judgment No. 582/01, of March 22, makes express mention that it should be understood that “it has to be daily”.

The Office of the Deputy Director-General of the General Inspectorate of Services of the General State Administration also states in its report of 3 December 2010 that the day should be understood on a daily basis and is based on the following grounds:

“- The term “working day” is not defined in the EBEP or in the Workers’ Statute.

The Dictionary of the Royal Spanish Academy defines “day” as “day” in its first meaning, the second being the “time of duration of daily work”.

By extension, the term “working day” can also refer to the computation of the working week, the working month and the working year.

- Article 48 of the EBEP expressly allows the time of absence from work, to be accumulated in paragraph f, to which one is entitled by breastfeeding a child under 12 months, in full days.

It can be assumed that, by not indicating this possibility in paragraph h, it should be at the general principle of daily working time.

- The Resolution of 20 December 2005 of the General Secretariat for the Public Administration, issuing instructions on the working hours and hours of civilian personnel in the service of the General State Administration, refers to the working day, with a meaning of daily, in some cases, and in others, weekly.

Thus, First Paragraph 4.B) indicates that “The maximum duration of the general working day in the General Administration of the State will be thirty-seven and a half hours per week (…)”.

However, in the same resolution, in the fourth paragraph, referring to the “Reduced working time due to particular interest”, the reduction of working time is daily, without the weekly accumulation of the period to which it is entitled.

Likewise, the “additional measures of hourly flexibility”, established in the second paragraph 4, are applied daily”.

For all of the above, it is concluded that the reduction in the legal guardianship permit for the care of children under 12 years of age can reach up to one half of the working day, understanding the term “working day” as a daily day and not as a weekly day, so that different reduction periods cannot be accumulated or enjoyed in full days.

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.