Possibility of compensating travel expenses in case of suspension of contract and not of cessation.

The question raised concerns the possibility of compensating travel expenses in the event of suspension of the contract and not of cessation.

To this end, we must refer, fundamentally, to the provisions of Royal Decree 462/2002, of 24 May, on compensation for service (Royal Decree, from now on), the consolidated text of the Law on the Status of Workers, approved by Royal Legislative Decree 2/2015, of 23 October (TRLET, from now on).

Thus, article 24 of the Royal Decree establishes the following:

“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.”

From the reading of the aforementioned precept, the following points can be deduced:

The text includes the mention of various cases that give a worker posted abroad the possibility of being paid for travel expenses. Thus, the change of country or population within the same country, the allocation of new destination, retirement or definitive cessation is required; therefore, no express reference is made to the possibility that the “suspension of the contract” may result in the payment of travel expenses.

In this regard, it is not considered possible to equate the suspension of the contract with the definitive cessation of the contract, since the definitive cessation of the contract implies the termination of the legal relationship between the worker and the contracting organization, while the suspension, according to the words of Article 45.2 TRLET, only “exonerates from reciprocal obligations to work and remunerate the work”. However, certain rights and obligations persist. In this 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 Foreign Workers in the Service of the General Administration of the State and its Autonomous Bodies.

From all the above, it follows that the situation of suspension is not assimilable to that of definitive termination of the contract, which makes it impossible to pay the travel expenses.

Likewise, 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, which refers to a plurality of cases in which the possibility of payment of travel expenses in favor of the worker or his family members is foreseen when certain circumstances arise.

Finally, it should be noted that the Spanish Administration itself does bear the costs of travel 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, that is, if it were on the initiative of the General Administration of the State or by agreement with it; which would oblige the Administration to provide what is necessary for travel in accordance with the provisions of article 24 of the Royal Decree.

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.

In the specific case that gave rise to this consultation, it was considered as options for the working person to explore the possibility that it was the United Nations organization for which he was going to carry out his cooperative activity that would take charge of such trips or the possibility of requesting that it be the Administration itself that would take charge of his trip within the framework of article 26.3 of the aforementioned Royal Decree, if the appropriate conditions were met.

Notwithstanding the foregoing, the Administration will be obliged to pay the costs of returning to Spain once the contract is definitively terminated.

In conclusion, bearing in mind that the legislation does not provide for the compensation of travel expenses in the event of suspension of the contract and since this is not assimilable to the definitive cessation of the contract, it is not appropriate to pay travel expenses in the event of suspension of the contract, nor reinstatement expenses after the termination of the contract.

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.