The question raised concerns how the computation of the corresponding days for breast-feeding leave should be carried out in those cases in which the employee or public employee has enjoyed during the first twelve months since the birth of the minor an unpaid leave.

Firstly, the legal framework for implementation needs to be analysed. With regard to the breast-feeding permit for a child under 12 months of age, this is regulated in Article 48(f) of Royal Legislative Decree 5/2015, of 30 October, which approves the revised text of the Law on the Basic Status of Public Employees (TREBEP), which states that officials shall have the right to a permit:

“By breast-feeding a child under 12 months of age, they will be entitled to one hour of absence from work which they will be able to divide into two fractions. This right may be replaced by a reduction of the normal working day by half an hour at the beginning and end of the day, or by one hour at the beginning or end of the day, for the same purpose.

The permission referred to in this paragraph constitutes an individual right of civil servants, and their exercise may not be transferred to the other parent, adoptive parent, guardian or foster parent.

It may be requested to replace the breast-feeding time with a paid leave that accumulates in full days the corresponding time. This modality may be enjoyed only after the completion of the permit by birth, adoption, custody, placement or the parent other than the respective biological mother.

This permit shall be increased proportionately in cases of childbirth, adoption, foster care for adoption or multiple foster care.”

In this way, the possibility of accumulating the breast-feeding permit in full days is specifically recognized as appropriate.

Taking into account the above, the question raised focuses on the duration of paid leave which accumulates in full days the breast-feeding leave in case the public employee has enjoyed an unpaid leave in the twelve months since the birth of the child, under article 73 of Decree 315/1964, of 7 February, approving the Articulated Text of the Civil Servants Act of the State,

The Higher Personnel Commission, by agreement of 30 December 2021, has established a series of interpretative criteria relating to breast-feeding leave. Specifically, with regard to the duration of the breast-feeding leave, its duration was to be calculated according to the general working day in the General Administration of the State, thirty seven and a half hours per week.

Based on the above, the duration of the permit, in general, is four weeks, without prejudice to the particularities of the specific case.

None of the above is affected by the fact that they have been granted unpaid leave before or after they have been granted a nursing leave. Despite the fact that the leave without pay, in accordance with the regulations indicated, cannot be considered as an effective work service, in the event that it is granted, there is no disassociation of the fact that gives rise to the permission for breast-feeding with the permit itself and all this, despite the fact that the legislator has not contemplated the possibility that there could be an evident situation of inequality in the treatment of the same protected situation between the two modalities of enjoyment: the breast-feeding of the minor, depending on whether he chooses to enjoy the reduction of working hours or the permit since, in the first case, he would only be entitled to the reduction corresponding to the period in which the minor service was granted. In this connection, account should be taken of the frequent occurrence of breast-feeding leave and the immediately subsequent request for leave of absence for the care of a child which does not limit the above-mentioned leave.

Consequently, and without prejudice to the competences of the management centre, the criterion of this Management Centre is that, in view of the applicable regulatory framework, if the child ' s unpaid leave is recognized during the child ' s twelve months of age, the leave does not deprive the child of his or her object, and it is therefore appropriate to recognize him or her in the terms provided by law, without it being appropriate to link his or her enjoyment to the effective working time that the applicant parent develops until the child reaches that age.

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.