The consultation considers the current criterion of interpretation of the term “different locality” for the purposes of the permit of article 48 a) 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.

Article 48(a) of the TRLEBEP has been amended by Royal Decree-Law 5/2023, of 28 June, which adopts and extends certain measures in response to the economic and social consequences of the Ukrainian War, to support the reconstruction of the island of La Palma and other situations of vulnerability; to transposition of European Union Directives on structural modifications of commercial companies and conciliation of the family life and professional life of parents and carers; and to implement and comply with European Union law, in order to comply with the European Parliament’s Serious Accident Directive (Article 158).

In that connection, the wording of that article reads as follows:

" (a) By serious accident or illness, hospitalization or surgical intervention without hospitalization that requires the domiciliary rest of the spouse, domestic partner or relatives up to the first degree for consanguinity or affinity, as well as of any other person other than the previous ones who lives with the official or official in the same domicile and who requires the effective care of the latter, five working days.

In the case of a serious accident or illness, hospitalization or surgical intervention without hospitalization requiring home rest, of a relative within the second degree of consanguinity or affinity, the leave shall be four working days.

In the case of death of the spouse, domestic partner or relative within the first degree of consanguinity or affinity, three working days when the event occurs in the same locality, and five working days, when it is in another locality. In the case of the death of a relative within the second degree of consanguinity or affinity, the permit will be two working days when it occurs in the same locality and four working days when it is in another locality.”

In this regard, when the actual event is a serious accident or illness, hospitalization or surgical intervention without hospitalization requiring home rest, only the degree of kinship indicated in the standard is to be considered and the leave varies only depending on whether the actual event occurs in the spouse, domestic partner or first-degree or second-degree relatives.

For this reason, the Centre’s repeated criterion of extending the number of days of the permit in the case of a ‘different locality’ only now applies in the case of the factual assumption of the death of the relatives indicated there.

And this criterion is now maintained for this single event, the death, thus facilitating the movement of the official to the place where the event that motivates the permit has occurred.

In fact, if the additional time required for travel is not taken into account, in some cases, it would not be possible to take into account the personal need to be met by the granting of the permit.

However, this additional period of time is not required if the death occurs in the municipality where the personal residence or the official residence (municipality where the work centre where he/she works is located) of the official is located, because the official makes daily commuting between one and the other to attend his/her job, thanks to the proximity and ease of communication that exists between the two.

In this sense, and with regard to this permission to enjoy in another locality, it should be remembered that the public official is responsible for the management of the general interests that in each case are entrusted to him so that, as a result of this situation, the permits and licenses contemplated by the legal system are not presented as absolute; rather, they must be moderate in those cases in which their concession may alter the good and correct functioning of the corresponding public service.

It should be noted that article 52 of the TRLEBEP establishes, within the duties of public officials, that of dedication to public service.

In this case, the attempt to claim as a different locality that the act occurred in the municipality of personal residence of the official and not the municipality of destination would clearly be an abuse of right prohibited by article 7 of the Civil Code.

Consequently, only if the event occurred in a third locality, which is different from that of work and residence, shall the permit, in the event of death, be granted for five working days.

Finally, it must be taken into account that for the extension of three to five working days, Article 48(a) of the TRLEBEP does not establish a condition other than that the event occurs in “different locality”, without establishing any requirement of kilometric distance, existing means of transport, or other extremes, to establish or not the right to the extension of the permit.

Therefore, it is not possible to introduce by interpretative means more requirements for the granting of the permit than those established by the legal system at any given time.

In addition, the specificity of the General Administration of the State, whose staff provide services throughout the national territory and abroad, must be taken into account, which prevents the establishment of a general criterion applicable to all cases.

In this sense, the judgments of the Administrative Litigation Chamber of the TSJ of the Basque Country of 5 February and 21 October 2009, and of the TSJ of Madrid of 2 March and 5 July 2012 confirm the above criterion.

Therefore, and until the legislator introduces more requirements or criteria for the application of the permit, there is no more limitation than that established when interpreting what is meant by “different locality” according to the arguments already adduced.

Based on the above, it is concluded that, when the actual event is a serious accident or illness, hospitalization or surgical intervention without hospitalization requiring home rest, only the degree of kinship indicated in the norm must be considered and the leave varies only depending on whether the actual event occurs in the spouse, domestic partner or relatives of first degree or second degree, with the duration of 5 or 4 working days as provided in the norm.

On the other hand, in relation to the event of the death of the subjects indicated in the standard, in the light of the case-law cited, which confirms the opinion of this Directorate-General, Article 48(a) of the TRLEBEP refers indistinctly to the locality of destination and the locality of residence, proceeding only with the extension of the permit from three to five working days or from two to four working days, when the event occurs in a third locality, other than that of the official’s habitual residence or work, without there being any incidence to these effects that these localities form part or not of a metropolitan area; and all this provided that the extension of a permit or the law does not involve fraud.

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.