Remuneration payable to a civil servant during the holiday period if prior to her enjoyment she has benefited from a reduction of one third of the working day by legal guardianship.

The issue raised concerns the remuneration of a female civil servant in a situation of reduced working hours for legal guardianship at the time of enjoyment of the holidays.

In the first place, the legal framework for implementation must be analysed. Article 48.h) of the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October (TREBEP) establishes:

“(h) For reasons of legal guardianship, when the official has the direct care of a person under 12 years of age, of an elderly person requiring special dedication, or of a person with a disability who does not perform a paid activity, he shall be entitled to a reduction in his working day, with the corresponding reduction in his remuneration.”

In relation to the enjoyment of holidays, article 50.1 of the TREBEP establishes that:

“Public officials shall have the right to enjoy, during each calendar year, a paid vacation of twenty-two working days, or the corresponding days proportionally if the service time during the year was shorter.

For the purposes of this article, they shall not be regarded as working days on Saturdays, without prejudice to the adaptations established for the special hours.”

Thus, and in the absence of provision to the contrary, during the period of reduction of the working day the employee will have the right to enjoy the same number of vacations, as indicated in the judgment of the TSJ Castilla y León (Burgos) (Social), sec. 1st, S 11-02-2010, No 131/2010, rec. 17/2010.

In view of the above, the question raised focuses on the remuneration of the staff member in a situation of reduced working hours during his or her holidays.

The jurisprudential criterion in this regard is that in the holiday period, salaries will be reduced proportionately if the civil servant or civil servant does not work full-time. In this sense, judgment of the TSJ Canarias (Las Palmas) (Contencioso), sec. 1st, S 08-06-2021, No 287/2021, rec. 196/2020:

“In other words, in our interpretation the worker has the right to the enjoyment of holidays in relation to the days worked regardless of the length of the day; his holiday in number corresponds to his working days, regardless of whether his day is five, six or eight hours.Their pay is reduced if they do not work full-time, but this does not affect holidays or leave days, since the working days are also maintained (not reduced) despite the reduction in the working day.”

Thus, apart from the fact that the reduction of the working day does not affect the duration of the holidays, it does so in its remuneration since this is proportional to that of the annual ordinary day.

This is reaffirmed by the provisions, within the scope of the General Administration of the State, in Article 2.2 of the Resolution of May 25, 2010, of the State Secretariat of Finance and Budgets, by which instructions are issued in relation to the payroll of the officials included in the scope of Law 30/1984, of August 2, in the terms of the Final Provision Fourth of Law 7/2007, of April 12, of the Basic Statute of the Public Employee, and updated with effect from June 1, 2010 the amounts of the total amount of the allowance paid in the corresponding period of six months.

For all the above, it is concluded that, during the entire period in which the permit to reduce the working time per legal guardian is extended, the official will have a proportional decrease in his remuneration, regardless of whether he decides to enjoy the permit during the holiday period, so that, if the official enjoys the holiday period during the enjoyment of this permit, he will receive the corresponding proportional remuneration, on the contrary, if he enjoys the holiday after the enjoyment of the permit, he will receive the full remuneration.

Without prejudice to the foregoing, there is nothing to prevent the staff member from applying for a full-time pass prior to the holiday period, except that once she returns from the holiday period she again applies for a reduced working day, which could lead to legal fraud.

Thus, the Judgment of May 14, 1998, of the First Section of the Contentious-Administrative Chamber of the High Court of Justice of Galicia, in a case in which a civil servant wanted to establish specific periods for the enjoyment of the permit for reduction of legal custody according to her interests, establishes in its Second and Third Legal Bases the following:

“ (…) It is obvious that the recurrent does not intend to make use of the reduction of the working day in the periods of continuous school day or school holidays, and on the other hand in the remaining periods, thus temporalizing, at her unilateral choice, the enjoyment of the reduced day. It is also obvious, however, that the purpose of the rule in which the appellant seeks to find support for her claim, which is no other than to make the work compatible with the care and attention of the child, is not exactly the same as that pursued by the plaintiff who, apparently, seeks only the full perception of her remuneration outside those non-school or continuous periods. (…)

The reason for granting the reduction of the working day responds to the specific need to seek, without detriment to paid work, the attention and care of the minor or diminished; that is why this reason exists or does not exist, what does not seem logical is that it appears and disappears according to the interests of the applicant, temporalizing its request in the form that suits it.”

In conclusion, during the reduction of the day for legal guardianship the official will have a proportional decrease of his/her remuneration, including the vacation period.

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.