Criteria applicable to schedule flexibility for child care

The issue raised concerns the application of the hourly flexibility measure contained in section 8.1 of the Resolution of February 28, 2019, of the Secretary of State for Public Service, which dictates instructions on working hours and hours of staff in the service of the General Administration of the State and its public bodies.

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

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

The question arises in the letter of consultation as to whether the said measure consists of an unconditional right of civil servants or whether, on the contrary, their exercise may be conditioned by the needs of the service or the primacy of general interests over private persons when they come into conflict.

First of all, the legal framework for implementation must be analysed. The aforementioned measure is regulated in section 8 of the working hours and timetables instructions, in the following terms:

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

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

8.1 Public employees who are responsible for persons over 12 years of age, children under 12 years of age, persons subject to guardianship or care under 12 years of age or persons with disabilities, as well as those directly responsible for relatives with serious illness up to the second degree of consanguinity or affinity, shall have the right to make the fixed working hours they have established more flexible at one hour a day. This right may also be exercised in the year in which the minor reaches the age of 12 years (…. )” (The highlight is its own).

As can be seen, the criterion that defines the regulation of 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 the service.

In view of the above, the question raised focuses on the measure regulated in paragraph 8 of the working time instructions, which aims to make working time more flexible on a daily basis in order to facilitate the reconciliation of public activity and private life.

However, this attempt to combine the two situations cannot lead to the interruption, reduction or worsening of the public services entrusted. 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 timetable and working hours that may be detrimental or detrimental to the general interests and rights of citizens.

Thus, 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 Chamber of the National Court of 12 November 2008 (appeal 96/2008) states that:

“the aforementioned concept of ‘needs of the service’ constitutes an indeterminate legal concept that gives the Administration a margin of appreciation, in order to specify the circumstances that it considers to exist in the case for the exercise of that power, and must provide the necessary evidentiary material 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 conciliation 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; so, it could limit said exercise for duly justified reasons related to the operation of the services, so that the general interest entrusted and the provision of said public service is safeguarded.

All of the above is without prejudice to remember 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, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor do they imply any link with the type of procedures to which they refer. In addition, since they are not mandatory or binding, the bodies to which such replies are addressed may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin deal with the issues raised in the light of the regulations in force at the time of their issuance, so that these answers may be affected by subsequent legislative changes or judicial resolutions.