Taking up a position in committee of services while on temporary disability

The consultation concerns the possibility of dismissing and taking office of a staff member who is temporarily incapacitated in a new position in committee of services.

In particular, the question arises as to whether FR5 can be carried out to register the dismissal and the taking into service of a post in favour of a staff member who is temporarily incapacitated, in respect of which neither the time at which the dismissal has begun nor the possible date envisaged for its termination is indicated.

With regard to this matter, mention must be made of the final provision fourth, second paragraph of the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October, which establishes that: “Until the laws of the Public Service and the regulations of development are issued, the current regulations on the management, planning and management of human resources shall remain in force in each Public Administration as long as they do not conflict with the provisions of this Statute.”.

Therefore, the provisions of the General Regulations on the Admission of Personnel to the Service of the General State Administration and the Provision of Posts and Professional Promotion of Civil Servants of the State Administration, approved by Royal Decree 364/1995 of 10 March, article 64 of which contains the provisions regarding the figure of the service commission, noting in its first paragraph that:

“1. When a job becomes vacant, it may be filled, in case of urgent and unpostponable need, on a voluntary basis, with a staff member who meets the requirements established for his performance in the list of jobs. (…).

4. If the commission does not involve a change of residence of the official, the cessation and takeover must take place within three days of the notification of the service commission agreement; if it involves a change of residence, the period shall be eight days in voluntary commissions and thirty days in forced commissions.”

In addition, it must be taken into account that a staff member in a situation of temporary incapacity remains in the administrative situation of active service.

On the other hand, it should be noted that, if the service commission has already been agreed, regardless of whether the corresponding registration document is fulfilled, it could only be revoked for the cases assessed in the norm, without the temporary incapacity being considered a cause of revocation.

Based on the above, it is understood that, in general, and without other circumstances having been revealed, during the temporary incapacity it is possible to carry out the cessation in the previous job and the taking of possession in a new position obtained in committee of services, continuing once said taking of possession is carried out in the situation of temporary incapacity, while the causative fact that gave rise to said incapacity remains.

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.