Possibility of granting a reduction in the working day for child care to an official occupying a job with continuous public attention (APC)

The question raised concerns the possibility of granting a reduction in child-care hours to an official occupying a job with continued public service (CPA).

First of all, the legal framework for implementation must be analysed. 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. (hereinafter referred to as TREBEP), provides that “For reasons of legal custody, when the official has the direct care of a minor under twelve years of age (…), he will be entitled to reduce his working day, with the corresponding reduction in his remuneration..”

The second paragraph of the fourth final provision of the EBEP provides that until the Civil Service Laws and the development regulations are enacted, the existing 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 this Statute.

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 question raised focuses on the possibility of recognizing the reduction in working hours for staff occupying a job with attention to the continuing public.

From the provisions of Article 48(h) of the TREBEP and other implementing regulations, it is difficult to deduce that there is a limitation of application to the staff occupying specific positions of the right to receive a certain permit, in this case, for reasons of legal custody.

In this context, it should be remembered that the Public Administrations are competent to establish the organization of the working time of the staff at their service, in accordance with the provisions of Articles 47 and 51 of the TREBEP.

Thus, in the field of the General Administration of the State, the Resolution of February 28, 2019, of the Secretary of State for Public Service, which dictates instructions on working hours and hours of the staff in the service of the General Administration of the State and its public bodies, is applicable.

The current Working Hours Resolution does not expressly recognize the incompatibility between the performance of a post of continuous attention to the public and the enjoyment of a reduction in working hours, although its concession and the way it is articulated will have to be adapted in any case to the organizational and service needs.

Therefore, public employees who occupy a job with continuous public care (APC) are entitled to a reduction in working hours for child care.

However, the legal system includes instruments that make it possible to balance the right of public officials with the general interest derived from the needs to provide the service.

Thus, the single article of Royal Decree 2670/1998 of 11 December specifically states that the employee will be granted the part of the working day that suits his interests if the organization of the work permits.

Therefore, the staff member may, in principle, choose the part of the day on which he or she will benefit from the reduction according to 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.

In the same sense, the Third Legal Basis of the Judgment of the Third Section of the Contentious-Administrative Chamber of the Superior Court of Justice of Madrid, Judgment number 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 upon 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 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 upon the unity of the words of the organization,”.

Therefore, the performance of a continuous service post and the enjoyment of a reduction in the working day is compatible, although its concession and the way it is articulated will have to be adapted in any case to the organizational and service needs.

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.