The question raised concerns the application of the legal custody permit for the care of a child under 12 years of age, in relation to, on the one hand, the percentage of reduction of working hours to be applied, and on the other, whether 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) refers to daily or weekly working hours.

First of all, 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 minor under twelve years of age, of an elderly person requiring special dedication, or of a person with disabilities who does not perform remunerated activity, he will be entitled to reduce his working day, with the corresponding reduction in his remuneration.

The same right shall apply to any official who needs to take direct care of a relative, up to the second degree of consanguinity or affinity, who, for reasons of age, accident or illness, is unable to take care of himself or herself and does not carry out remunerated activities.”

In accordance with the fourth additional provision of the TREBEP, until the Civil Service Laws and the development regulations are issued, the current regulations on the management, planning and management of human resources shall remain in force in each Civil Service until they are contrary to the provisions of the EBEP.

Therefore, it must be understood that it remains 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 11 December, provides that:

“1. An official who, for reasons of legal guardianship, has in his direct care a minor under six years of age, an elderly person requiring special dedication or a psychic, physical or sensory handicap who does not perform a remunerated 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 time value applicable to such reduction shall be based on the total monthly full remuneration received by the staff member divided by the number of calendar days of the corresponding month and, in turn, this result by the number of hours that the staff member has an obligation to meet, on average, each day.

3. Where the organization of the work of the unit so permits, the staff member shall be accorded the portion 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 may be applied, taking into account the wording of Royal Decree 2670/1988, will be up to one half of the working day, with the proportional reduction of remuneration.

With regard to the second consultation referred to, that is to say, 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 benefits from the reduction in accordance with his or her personal interests, but the Administration is empowered to modify that choice of the 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 7 December, which establishes in relation to Royal Decree 2670/1998, of 11 December that:

“This rule makes the choice by the official of the part of the working day that suits his interests conditional on the organization of the work of the unit, which means that the granting of the reduction of the working day is obligatory for the Administration, without any margin for discretionary assessment, if the estimates of facts contained in article 30.1 (g) are met, that is, that an official for legal custody has in his direct care a minor under 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 unity of the work or the words of the organization.”

(…) the regulation of the permit establishes a subjective right of the official not subject to resolving conditions or modal burdens, since if so were the Law or Royal Decree 2670/1998 they would say so, and the truth is that they do not limit the right to the hourly reduction more 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 rule allows him to enjoy.

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

“In any case, a case similar to the one submitted for consideration by this Court (…) has been resolved by the Social Chamber of the Superior Court of Justice of Andalusia, based in Málaga, in the sense of understanding that the rule then invoked, Article 37.5 of the Workers’ Statute – the corresponding to the conventional precept analysed in these cases, the repeated Article 33.1.g)- what it contemplates is a daily reduction of working time, couple with the care of the minor children, which the Court understands must also be demanded daily (judgment of the said Chamber, invoked by the number 22).

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 Contentious-Administrative Chamber, Judgment number 842/2007, of 7 December, refers to “the time slot in which the official can enjoy his right to the reduction of working hours” 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 a daily”.

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

“- The expression “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 breast-feeding a child under 12 months, in full days.

It can be presumed that, by not indicating this possibility in paragraph h, it should be at the general beginning of the daily working day.

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

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

However, in the same resolution, in the fourth paragraph, referring to the “Reduced working day for particular interest”, the reduction of working hours is daily, without the weekly accumulation of the period to which one is entitled.

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

In view of all the above, it is concluded that the reduction in the day of the legal guardianship permit for the care of a child 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 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.