I become a triennial victim of temporary disability.

The issue raised concerns the accrual of triennials in a situation of temporary incapacity.

In the first place, the legal framework for implementation must be analysed. The remuneration and supplements to be received during the temporary incapacity by the officials attached to the Special Social Security Regime of the officials of the State Administration, is regulated, on the one hand, in Royal Decree 956/2018, of July 27, which approves and publishes the Agreement adopted by the General Negotiation Table of the General Administration of the State on July 23, 2018, in relation to the remuneration regime of the situation of temporary incapacity of the personnel in the service of the General Administration of the State and Agencies or Public Entities, as well as in Article 21 of the Royal Law, 2000.

According to this regulation, it is possible to differentiate between the remuneration that must be received during the first 90 days of temporary incapacity, and those that must be received from the ninetieth first day.

With regard to the remuneration to be received during the first 90 days of temporary incapacity by officials attached to the Special Social Security System of officials of the State Administration, Paragraph 2 of the aforementioned Agreement adopts the following measure:

“To approve for all personnel included in the Administrative Mutualism Regime in the service of the General Administration of the State, of its Agencies or of its Dependent Public Entities, in a situation of temporary incapacity to which the corresponding license has been issued, that the remuneration to be received during the period that does not include the application of the temporary incapacity allowance provided for in that Regime be one hundred percent of the remuneration, basic and complementary, corresponding to their ordinary remuneration of the month in which the temporary incapacity began; it is subject to the provisions of its current regulatory regulations for the period of time in which the Administrative Incapacity Allowance is already applied.”

Therefore, the benefit to be received during the first three months will be one hundred percent of the remuneration, both basic and complementary, taking into account the ordinary remuneration of the month in which the temporary incapacity began.

On the contrary, from the ninety-first day, the regulatory regulations governing the temporary disability allowance will be applicable.

Thus, the financial benefit in the situation of temporary incapacity from the ninetieth first day will be that established in article 21.1.b of the Consolidated Text of the Law on Social Security of Civil Servants of the State, approved by Royal Legislative Decree 4/2000, of 23 June, which provides that:

“From the fourth month he shall receive the basic remuneration, the dependent child allowance, if any, and a temporary incapacity allowance from the General Mutuality of Civil Servants of the State, the amount of which, fixed and unchanged for the duration of the incapacity, shall be the greater of the following two amounts:

1.a 80 per cent of the basic salaries (salary, trienniums and grade, if any), increased by one-sixth of an extraordinary salary, corresponding to the third month of leave.

2.a 75 per cent of the additional remuneration accrued in the third month of leave. (…)”.

For its part, Order PRE/1744/2010, of 30 June, which regulates the procedure for the recognition, control and monitoring of situations of temporary incapacity, risk during pregnancy and risk during breastfeeding in the Special Social Security Regime of civil servants of the state, provides in its article 13.2 that the personnel body will send to MUFACE the data relating to the remuneration of the mutualist accrued at the beginning of the third month of leave and the complementary remuneration, which, at the beginning of the fourth month, has ceased to receive. And it provides in article 14(a) that: “In the third month of leave, any remuneration, basic and complementary, that must be imputed to that month by virtue of a provision or administrative act that recognizes it, regardless of the moment in which its perception occurs, shall be considered accrued.”

In other words, from the ninetieth first day, the basic remuneration and the dependent child allowance will be received, on the one hand, and the temporary disability allowance will be paid by the Mutuality of Civil Administration Officials of the State (MUFACE), on the other.

With regard to the basic salaries to be received from the ninetieth first day, the precept does not establish any restriction, so that they will be calculated according to the remuneration concepts that should be received by the official at each time, and may therefore include increases or trienniums that have been improved in their case during the temporary incapacity situation. In addition, these salaries continue to be paid by the Department or Agency in which the staff member provides services.

Based on the regulations set forth in the second paragraph, during the first ninety days of temporary incapacity, the worker will receive the ordinary remuneration of the month in which the temporary incapacity began, without any updating. However, this does not justify the fact that this salary concept is not paid as a backlog.

In this regard, the trienniums, in accordance with article 23 of Law 30/1984, of 2 August, on measures for the reform of the Public Service, can be defined as “an equal amount for each group, for every three years of service in the Body or Scale, Class or Category.”

The triennium is a remunerative concept that is intended to compensate the official as a result of the continuous provision of services in the Administration and that, under article 23 of Law 30/1984, is perfected after three years.

Thus, this rule establishes only as a requirement that three years of service have been provided in the corresponding Body or Scale.

It should be noted that for those who are temporarily incapacitated, there is no interruption in the provision of services. Temporary incapacity does not constitute any of the situations of civil servants, but a contingency with respect to the situation of active service, protected by the Social Security regime of Civil Servants of the State (art. 18) of the already mentioned Royal Legislative Decree 4/2000, of 23 June.

If we delve into the legal situation that derives from each of the situations of the officials, the TREBEP sets up a bundle of rights and duties for the official that is different depending on the situation. It is precisely the fact of being in active service and providing services that results in the accrual of triennials. Its recognition is subject to the fulfillment of a condition, such as the continuous provision of services for three years, and once fulfilled, the right of the interested party to receive monthly an amount while active. Therefore, there can be no delay in the recognition of a right, in this case, the improvement of trienniums, when there is no change in the administrative situation of the worker.

Thus, depriving the public employee or employee in a situation of incapacity to receive the three-year period from the moment in which it is effectively perfected, being in a situation of active service, would give rise to a situation contrary to law, since the regulation exposed only includes as a requirement to have performed three years of service.

In this regard, Judgment No. 626/2016 of the High Court of Justice of Galicia can be brought to the attention of the following:

“The criterion of excluding the perception of the amount accrued for a perfected triennium during the period of temporary incapacity, once the discharge is reached, clashes with the nature and purpose of this basic remuneration, and does not find normative support.”

In similar terms, the High Court of Justice of Castilla y León pronounces in Judgment No. 62/2019.

Taking into account that this is a remuneration that compensates the staff member after the continued provision of services and the condition of the rule, which is the provision of services for three years, has been met, the interested party is entitled to receive this amount monthly. Since the situation of incapacity during the first ninety days prevents the salary update, the appropriate amount will be paid subsequently.

In conclusion, the payment of perfected trienniums during the temporary incapacity for arrears should be made where possible.

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.