The question raised concerns the permit to reduce working hours by up to 50% of working hours due to the care of a family member with a very serious illness. In particular, the consultation focuses on how to determine what percentage of reduction of the working day corresponds to each case and how the weighting of the public and private interest should be carried out.

First of all, the legal framework for implementation must be analysed. Article 48(i) of the consolidated text of the Law on the Basic Status of Public Employees, approved by Royal Legislative Decree 5/2015, of 30 October (TREBEP), states that:

“Because the care of a first-degree relative is necessary, the official will be entitled to request a reduction of up to fifty percent of the working day, on a remunerated basis, for reasons of very serious illness and for a maximum period of one month. If there is more than one holder of this right for the same causative act, the time of enjoyment of this reduction may be prorated among them, respecting in any case, the maximum period of one month.”

Thus, the causative fact for the granting of such permission is the very serious illness of a relative in the first degree of consaguinity or affinity, which can be granted only once for each pathological process. The duration of the permit shall be a maximum of one month, without prejudice to its anticipated conclusion in those cases in which the medical discharge or death of the relative occurs.

It should also be noted that, in order to qualify for this permit, applications must be accompanied by the following documentation:

a) Document that proves the relationship of consanguinity or affinity in the first degree.

b) Certificate issued by the Official Medical Service that corresponds to the patient according to his Social Security System, which certifies the very serious illness of the family member.

In view of the above, the first issue to be resolved concerns the origin of the granting of this permit. Thus, article 48 (h) refers only as a causative fact to the very serious illness of a relative. With regard to the interpretation of the term “very serious disease”, it is pointed out that the competent body, in the light of the medical report qualifying the severity of the disease, will decide in a reasoned manner on the relevance or not of granting the aforementioned reduction of the working day permit.

In this regard, and in order to facilitate the adoption of the relevant resolution, it will be useful to inform the official that the report contains the optional opinion on the seriousness of the disease.

The second question concerns the extent of the reduction, that is to say, what percentage of working hours should be reduced. In determining the reduction in working hours, it is necessary to bear in mind that general interests must always prevail over private individuals, and, therefore, continuity and guarantee in the effective provision of the public service must take precedence over a reduction in working hours that may be detrimental or detrimental to the general interests and rights of citizens. This is always done with due respect for the right to reconcile family and professional life.

In this sense, judgment of the TSJ Castilla y León (Burgos) (Contencioso), sec. 2nd, S 23-12-2013, No 478/2013, rec. 49/2013:

“Well, neither of these rules subordinates, as it could not be otherwise, the adequate provision of the service to the choice of the official’s schedule, but they allow and even impose as criteria for the organization of the latter the necessary conciliation with the needs derived from family life; in any case without losing sight, as we say, of the prevalence of the needs of the service.

(…)

The rules invoked by the same plaintiff therefore show that the possibility of choosing a schedule is necessarily limited by the needs of the service , and such needs, contrary to what is stated in the complaint, have been explained in the Resolution under appeal”.

Therefore, the competent body, in accordance with the needs of the service, will carry out the determination of the corresponding reduction of the working day, safeguarding the general interest entrusted and the provision of the public service.

In this sense, the reduction in working hours should, in general, take place on a continuous basis, since a reduction involving the provision of the service intermittently within the ordinary working day could result in the services being neglected or even interrupted.

All this without prejudice to the fact that, if there were more than one holder of this right for the same causative fact, the time of enjoyment of this reduction can be prorated among them, respecting in any case, the maximum period of one month.

Finally, the third issue concerns the possibility of accumulating the permit in full days. In this regard, it should be noted that the leave to take care of a family member in the first degree for very serious illness consists of a reduction in the working day of up to fifty per cent, so it is not possible to accumulate it in full days since this possibility is not expressly provided for in the regulation.

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.