Consultation on the application of article 49, letter e) of the consolidated text of the Law on the Basic Status of Public Employees (hereinafter TRLEBEP), approved by Royal Legislative Decree 5/2015, of 30 October, when both parents are teaching officials and the mother is enjoying maternity leave.

In particular, it is questioned whether the requirement that “both parents work” is understood to be fulfilled in the event that the mother is enjoying leave for childbirth and the father can therefore enjoy leave for the care of a minor child affected by cancer or another serious illness, receiving full remuneration.

Article 49, letter e, of the TRLEBEP regulates the leave for care of a minor child affected by cancer or another serious disease in the following terms:

“(e) Leave for the care of a minor child, affected by cancer or other serious illness: the official shall be entitled, provided that both parents, adoptive parents, guardians for adoption or foster children of a permanent nature work, to a reduction in the working day of at least half of the duration of the working day, receiving full remuneration from the budgets of the organ or entity where he or she has been providing his or her services, for the care, during hospitalization and continuous treatment, of the minor child, affected by cancer (malignant tumours, melanomas or carcinomas) or for any other serious illness involving a continuous hospital admission of long duration and the need for the care of the permanent community; For these purposes, the mere fulfilment of the child ' s 18 years of age, if the need for direct, continuous and permanent care is maintained, will not result in the reduction of the working day being extinguished..

However, after the age of 18, the right to reduce the working day until the person in charge reaches the age of 23 may be recognized in the cases in which the cancer or serious disease has been diagnosed before reaching the age of majority, provided that at the time of application the requirements established in the previous paragraphs are accredited, except for the age.

In addition, the right to this reduction of working hours shall be maintained until the person in charge reaches the age of 26 if, before reaching the age of 23, he/she also proves a degree of disability equal to or greater than 65 per cent.

When both parents, adoptive parents, guardians for adoption or foster parents of a permanent nature, by the same subject and causing fact, are present, the circumstances necessary to be entitled to this leave or, where appropriate, they may have the status of beneficiary of the benefit established for this purpose in the Social Security Regime that applies to them, the official shall be entitled to the receipt of full remuneration for the duration of the reduction in his working day, provided that the other parent, adoptive parent or guardian for adoption or foster day of a permanent nature, without prejudice to the right to the reduction in his or her social security benefits established for him or her. Otherwise, you will only be entitled to a reduction in working hours, with a consequent reduction in remuneration.

Likewise, in the event that both provide services in the same body or entity, it may limit its simultaneous exercise for reasons based on the proper functioning of the service.

When the sick person marries or becomes a de facto partner, the right to leave is granted to the spouse or de facto partner, provided that he or she proves the conditions for being a beneficiary.

The conditions and cases in which this reduction in working hours can be accumulated in full days will be established by regulation..”

According to the precept transcribed, in the event that the two parents of the minor affected by cancer or another serious disease work, only one of them will be able to receive full remuneration when the two enjoy this same permission.

In the case raised in the letter of consultation, both parents work and are entitled to leave for the care of a minor child affected by cancer or another serious disease, although the mother at this moment is not enjoying this leave, but rather the birth leave for the biological mother, so nothing prevents the other parent from being able to enjoy leave for the care of a minor child affected by cancer or another serious disease, receiving their full remuneration.

However, once the mother completes her birth permit for the biological mother, if the two parents choose to take care of the minor child affected by cancer or another serious disease, it must be taken into account that one of them will have the right to receive their full remuneration, provided that the other, without prejudice to his right to a reduction in working hours, is subject to the consequent reduction in remuneration.

In addition, if the two provide services in the same teaching centre, the latter may limit the simultaneous enjoyment of the permit for reasons based on the proper functioning of the service.

All of the above is without prejudice to remember 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, do not have the character of a binding criterion, nor do they give rise to rights or expectations of law, nor do they imply any link with the type of procedures to which they refer. In addition, since they are not mandatory or binding, the bodies to which such replies are addressed may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The answers to queries contained in this bulletin deal with the issues raised in the light of the regulations in force at the time of their issuance, so that these answers may be affected by subsequent legislative changes or judicial resolutions.