Calculation of the extraordinary pay to a civil servant who ceases in a position of free appointment.

The consultation relates to the calculation of the extraordinary pay of a female staff member who ceases to hold a position of free appointment.

Article 33 of Law 33/1987, of 23 December, on General State Budgets for 1988 - to which the subsequent Annual Budget Laws refer - establishes in this regard:

“The extraordinary payments of State officials shall be due on the first working day of the months of June and December and with reference to the situation and right of the official on those dates, except in the following cases:

(a) Where the time of service provided up to the day on which the extraordinary pay accrues does not cover all of the six months immediately preceding the months of June or December, the amount of the extraordinary pay shall be reduced proportionately, each calendar month and day being calculated as a sixth and one hundred eighths, respectively, of the amount of the extraordinary pay that at the date of accrual would have been paid for a period of six months, taking into account that if the sum of the days of the incomplete months were thirty or more, each fraction of thirty days shall be regarded as a full month.

(b) Staff members on active service who are not entitled to pay will receive extraordinary payments on the dates indicated, but their amount will be reduced accordingly.

(c) In the case of cessation of active service, the last extraordinary payment shall be due on the day of cessation and with reference to the situation and rights of the official on that date, but in proportion to the time of services actually rendered, unless the cessation is due to retirement, death or retirement of the officials referred to in article 34 (c) of this Law, in which case the days of the month in which the cessation occurs shall be counted as a full month.

For the purposes provided for in this article, the duration of leave without the right to remuneration shall not be considered as services actually provided.

If the cessation of active service occurs during the month of December, the settlement of the proportional part of the extraordinary pay corresponding to the elapsed days of that month will be carried out in accordance with the amounts of the basic remuneration in force therein.

The contributions of liabilities and contributions of the mutual insurance companies to the general mutual insurance companies of officials corresponding to extraordinary payments shall be reduced by the same amount as the reduction of such payments as a result of the payment of the same in an amount proportional to the time of services actually provided, regardless of the date of their accrual.”

A proportionality criterion is thus deduced from this provision, so that when calculating the amount of extraordinary pay, consideration must be given to the period of time that the staff member has occupied the corresponding post from which she has been dismissed.

The extraordinary payments, according to the jurisprudential criterion, respond to the work actually carried out during the period to which they refer, either this annual or semiannual, due to which the period of computation may vary, but does not alter the specific nature of these payments.

In this regard, both the High Court of Justice of Madrid has ruled in a judgment of December 14, 2012, stating that:

“Extraordinary pay is a manifestation of so-called deferred pay. They become day by day, although their expiration takes place in certain months of the year. And its amount must be equal to the wage regularly received by the worker, unless by conventional rule of priority exclusions are established, or specific amounts.”

In this way, the nature of this remuneration concept is reaffirmed, the extraordinary payments, which have the consideration of deferred salary accrued day by day but whose expiration takes place on a certain date, in particular, in June and December. Therefore, the possibility of their being prorated derives from the aforementioned article 33 of the LGPE 1988.

In the same sense, the Resolution of May 25, 2010, of the State Secretariat of Finance and Budgets, is pronounced, by which instructions are issued in relation to the payroll of the officials included in the scope of application of Law 30/1984, of August 2, in the terms of the Fourth Final Provision of Law 7/2007, of April 12, of the Basic Statute of the Public Employee, and the amounts of the remuneration of the staff referred to in the corresponding articles of the Law of General Budgets of the State for that year are updated with effect from June 1, 2010.

In conclusion, given that among the legal exceptions that the implementing regulations establish for the accrual of extraordinary pay, there is no cessation of the position occupied by free appointment, we must conclude that in these situations the extraordinary pay must be accrued by applying the criterion of proportionality, so that when calculating the amount of the extraordinary pay, consideration must be given to the period of time that the civil servant has occupied the corresponding position from which she has been dismissed.

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.