Origin of recognition for a triennium to a staff member who is in a situation of provisional suspension.

The question raised concerns the appropriateness of recognising a staff member on temporary suspension for a three-year period.

To this end, it is necessary to analyze the provisions of the consolidated text of the Law of the Basic Statute of the Public Employee, approved by Royal Legislative Decree 5/2015, of October 30, (hereinafter, TRLEBEP).

According to article 90.1 of the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October, (hereinafter, TRLEBEP): “The official declared in the situation of suspension shall be deprived, during the time of stay in the same, of the exercise of his functions and of all the rights inherent in the condition”.

For its part, Article 98 of the TRLEBEP states that: “(…) The temporary suspended official shall be entitled to receive during the suspension the basic remuneration and, where appropriate, the family allowances for dependent children. (…) If the temporary suspension does not become a definitive sanction, the Administration must restore to the official the difference between the assets actually received and those that would have been received if he had found himself with full rights. (…) When the suspension is not declared final, the duration of the suspension shall be counted as active duty, and the immediate return of the official to his/her job must be agreed, with recognition of all economic and other rights that come from the date of suspension.”.

Likewise, the 7th Section of the Administrative Litigation Division of the High Court of Justice of Madrid issued a judgment dated 27 April 2002, in which it was established with regard to the recognition of triennials during the provisional suspension that this recognition is an inherent right to the status of official and that, therefore, it would not be possible to recognize them while the situation of provisional suspension lasts, this recognition being conditional on what is available when the provisional measure is lifted and the judgment is handed down, and until then it will not be appropriate, if the provisional suspension does not become final, to count the time spent in the situation of provisional suspension as active.

On the basis of the foregoing, it would not be possible to recognize the staff member ' s three-year term of office for the duration of the interim suspension, as long as he or she is deprived of the rights inherent in the status of staff member.

However, in the event that such suspension is not declared final, the duration of the suspension would be calculated as an effective service, and the appropriate economic and other rights, including the recognition of the triennium, must be recognized.

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.