Possibility of equating the situation of “suspension of contract” with that of “definitive cessation”.

The question raised concerns the possibility of equating the situation of “suspension of contract” with that of “definitive cessation” for the purpose of payment of travel expenses to return to Spain, and, where appropriate, those of reinstatement to the post.

In the first place, the legal framework for implementation must be analysed. In accordance with the Fourth Final Provision of Royal Legislative Decree 5/2015, of 30 October, approving the consolidated text of the Law on the Basic Status of Public Employees:

“3. Pending the enactment of the Civil Service Laws and the development regulations, the existing regulations on the management, planning and management of human resources shall remain in force in each Civil Service as long as they do not conflict with the provisions of this Statute.”

In accordance with the above, with regard to the payment of travel expenses, Royal Decree 462/2002 of 24 May on compensation for service remains in force.

The issue raised concerns transfers abroad and compensation for travel expenses, which is regulated in article 24 of the Royal Decree, which states:

“1. The staff who are posted from Spain to any position of the Spanish Administration abroad or, once posted from Spain, change country or population within the same country, for reasons of new destination, or return to Spain for the same cause, or by definitive cessation or retirement will be entitled to payment of their travel expenses; and in cases where the destination is planned for a period of more than eighteen months, they will also be entitled to payment of the travel expenses of the members of their family who effectively move and to the transport of furniture and belongings. However, the Under-Secretary of the Department or the higher authority of the relevant Agency or Entity may waive this minimum time requirement where exceptional circumstances so warrant.

2. In the cases contemplated in the previous section, the staff will also receive, by themselves and by each of the family members with the right of passage who accompany them, where appropriate, during the days of the journey of transfer, by land, sea or air means and following a direct route, the expenses for maintenance that would correspond in the country of destination, provided that the maintenance was not included in the price of the ticket or passage. For these purposes, for the personnel who carry out the transfer from abroad by definitive cessation or retirement, it will be understood that Spain is the destination country and the diets corresponding to national territory will be applied.”

Taking into account the above, the question raised focuses on the possibility of equating the situation of “suspension of contract” with that of “definitive cessation” for the purposes of article 24 of Royal Decree 462/2002. The answer must be negative, since both situations are not assimilable.

Previously, it should be noted that article 24 does not specifically include the situation of suspension of contract as an event that results in the payment of expenses. Thus, this precept includes the mention of various and specific cases that give a worker posted abroad the possibility of receiving travel expenses. In particular, reference is made to the change of country or population within the same country, the allocation of new destination, retirement or permanent cessation. In other words, no express reference is made to the possibility that the “suspension of the contract” will result in the payment of travel expenses.

The question therefore arises as to whether the suspension of the contract can be equated with the definitive termination. The answer must be negative since both situations are not assimilable.

On the one hand, the definitive termination of the contract implies the termination of the legal relationship between the worker and the contracting organization, however, the suspension, according to the words of article 45.2 of the Workers’ Statute only “exonerates from reciprocal obligations to work and remunerate the work”, while certain rights and obligations nevertheless persist. In the present case, one could cite the reserve of posts and the calculation of the term for seniority purposes, referred to in article 11.1 of the Agreement of the General Negotiating Bureau of the General Administration of the State on working conditions for workers serving abroad in the service of the General Administration of the State and its Autonomous Bodies.

It follows that the situation of suspension is not assimilable to that of definitive termination of the contract. Therefore, this would not be a valid reason for the payment of travel expenses in application of article 24 of Royal Decree 462/2002.

Finally, it is necessary to analyze whether there is another formula that allows the payment of travel expenses in a situation of suspension of the contract.

On the one hand, the possibility that this transfer can be included within the category of “new destination”, referred to in Article 24.

It must be remembered that in the case of assignment of new destination the Spanish Administration itself takes charge of the travel expenses in the event that a person destined in a certain place is transferred within the framework of its relationship with the General Administration of the State.

As to who would be responsible for the expenses in the event of a change of destination, in accordance with the aforementioned Royal Decree 462/2002 and the Order of 8 November 1994 on justification and advance payments of compensation for service (article 3.5.d)), such responsibility would be the responsibility of the Ministry, agency or entity to which the new destination workplace belongs.

On the other hand, the possibility of payment of travel expenses in case of suspension of the contract is not contemplated between the cases provided in article 26 of the aforementioned Royal Decree 462/2002, which refers to a plurality of cases in which the possibility of payment of travel expenses in favor of the worker or his relatives is foreseen when certain circumstances arise.

Likewise, and in accordance with the foregoing, it is not the responsibility of the General Administration of the State to bear the costs of reincorporation once the suspension of the contract has been completed.

If, on the other hand, it will be the Administration’s obligation to bear the costs of returning to Spain once the contract is definitively terminated.

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.