The consultation proposes the interpretative analysis of which situations fall within the permission for inexcusable duty of Article 48(j) of the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October, (hereinafter, TRLEBEP).

Specifically, in the context of [Public Agency XXX], permission is systematically denied on the grounds of an inexcusable duty of a public nature for those employees [of Public Agency XXX] with sick children who must be cared for at home, even though they have a medical report justifying this circumstance. In these cases, the only way out for parents is to have days of their own affairs or holidays, or if they have already been consumed, to suffer a payroll discount for being absent from work.

Article 48(j) of the TRLEBEP regulates permission for an inexcusable duty in the following terms:

“Public officials will have the following permits: […]

j) For an indispensable time for the fulfilment of an inexcusable duty of a public or personal nature and for duties related to the reconciliation of family and working life.”

The “inexcusable duty”, configured as an indeterminate legal concept, has been defined, as provided in the Manual of Human Resources Management Procedures, published by Resolution of December 14, 1992 of the Secretary of State for Public Administration, as that obligation incumbent on a person whose non-compliance generates a civil, criminal or administrative responsibility; definition that has been accepted by the Courts of Justice (among others, Judgment 109/1998 of the Contentious Chamber of the Superior Court of Justice of Murcia).

The permit for inexcusable duty is characterized by two notes: its residual character and its duration.

It is understood to be a residual permit, in the sense that it applies only when there are no other permits that cover the situation that is intended to be protected through it.

And with regard to its duration, as the rule points out, it is a permit that is granted for the “indispensable time”, which means that, in contrast to other permits that are granted for a predetermined period of time, this is granted only for the minimum time but necessary to meet the obligation or duty that it protects.

Given the residual nature of the permit, the duty of a personal nature or relating to the reconciliation of family and working life would be fundamentally characterized as a situation that cannot be covered by any of the permits and surpluses that may be enjoyed by officials whose concession, conditioned on the needs of the service, will be authorized or denied in a manner motivated by the superior.

In those cases – the majority – in which the nature of the obligation or duty sought to be fulfilled under such permission has not been expressly established by a legal or agreed rule, and given its character as an undetermined legal concept that prevents, by its very nature, the establishment of a numerus clausus of cases, it will be necessary, according to the notes noted, to analyze the elements of fact that concur in each case to determine whether or not the granting of such permission is appropriate, always taking into account the restrictive nature that the law grants this permission.

In this sense, the permit, in general, must be limited to specific situations, which do not extend over time, and which are not repeated, since, otherwise, it would seem appropriate to apply other measures of conciliation or flexibilization of the working day, contemplated, essentially, in the current Resolution of February 28, 2019, of the Secretary of State for Public Service, which dictates instructions on working hours and hours of the staff in the service of the General Administration of the State and its public agencies (hereinafter, Resolution of working hours and hours).

Therefore, the ends indicated should serve as a guide for the corresponding Personnel Unit to resolve this matter, taking into account the concurrent circumstances in each specific case. To authorize such permission, each Personnel Unit will require the documentation it deems necessary, taking into account the concurrent circumstances of the specific case, to prove the fact that gives rise to an inexcusable duty.

Finally, due to the residual nature of the permit due to inexcusable duty, it is necessary to remember other permits and measures provided for in the public service regulations to be enjoyed on a preferential basis, such as the permit due to serious illness of a family member referred to in Article 48(a) of the TRLEBEP and the hourly flexibility measures included in the Resolution on working hours and hours, as well as the possibility of considering certain absences as justified on a recoverable basis, according to what may have been regulated in terms of working hours and hours.

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.