Extended summer day for children up to 12 years old.

The consultation refers to the enjoyment of the summer day established in section 7.1 of the Resolution of February 28, 2019, of the Secretary of State for the Civil Service, which provides instructions on the working time and hours of staff in the service of the General Administration of the State and its public agencies. In particular, a report is requested regarding whether both parents can enjoy this day from January 1 and until September 30, when both provide services in the same administrative unit.

Likewise, a report is requested regarding whether coexistence with the minor or shared custody is to be accredited, in case of separation or divorce.

Article 47 of the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October, provides that: “The Public Administrations will establish the general working hours and special working hours of their public officials. The working day can be full-time or part-time.”

On the other hand, paragraph 7.1 of the Resolution of 28 February 2019, when regulating the intensive summer day, establishes the following:

“7.1 During the period from 16 June to 15 September, inclusive, it will be possible to establish an intensive working day, at a rate of six and a half hours of continuous work, to be carried out between 8:00 and 15:00 hours, from Monday to Friday. In the case of employees who work only in the afternoon, they must perform six and a half hours of continuous work, between 14:30 and 21:30 hours, from Monday to Friday.

For reasons of reconciliation of family and working life, public employees and employees with descendants or persons subject to their guardianship or fostering up to 12 years of age, provided that they live with the applicant and are dependent on him, being in his charge, may avail themselves of this type of intensive working day from 1 June to 30 September. This right may also be exercised in the year in which the minor reaches the age of 12 years. (…)”.

For its part, paragraph 2.4.e) of the Resolution establishes that the work schedule must respect, in any case, the adaptation of the schedule to the needs of the service and the functions of the center.

That is to say, paragraph 7.1 of the aforementioned Resolution provides, on the one hand, for the possibility of establishing a summer day, from 16 June to 15 September; and, on the other, for the right of public employees included in the scope of the same, to be eligible for the summer day, for reasons of reconciliation of personal, family and working life, from 1 June to 30 September.

In addition, this working day must be included in the corresponding work schedule, which, as indicated, must respect, in any case, the needs of the service and the functions of the center.

Both the summer day and the extension of it that occurs for reasons of reconciliation of personal, family and working life for those who have children up to twelve years of age, is an individual right of each of the parents in their status, without any limitation having been established in that regard.

That is, the adaptation of the working day for reasons of reconciliation of personal, work and family life is provided as an individual right of each official and, therefore, even if both parents provide services in the same unit, it would not be possible to limit that right for this reason.

A different question would be whether the needs of the service were properly accredited. However, it must be taken into account that, as long as the “extended” summer day due to conciliation is configured as a right by the Resolution itself, the necessary measures must be adopted in each unit so that public employees can enjoy this right and it is only limited, on an exceptional basis, by duly accredited service needs.

Finally, with regard to the question of whether to demand coexistence with the minor or joint custody, in the event of separation or divorce, it should be understood, in the light of paragraph 7.1, second paragraph, of the aforementioned Resolution, that it must be established that there are grounds for conciliation in order to qualify for such a day; therefore, the managing centre may request the documentation that proves this in each case.

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.