The question raised concerns whether, having declared the temporary incapacity of a relative to the direct care of the public employee, he can request the reduction of the working day for reasons of legal custody.

First of all, the legal framework for implementation must be analysed. Article 48.h) 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:

“For reasons of legal guardianship, when the official has the direct care of a minor under twelve years of age, of an elderly person requiring special dedication, or of a person with disabilities who does not perform remunerated activity, he will be entitled to reduce his working day, with the corresponding reduction in his remuneration.

The same right shall apply to any official who needs to take direct care of a relative, up to the second degree of consanguinity or affinity, who, for reasons of age, accident or illness, is unable to take care of himself or herself and does not carry out remunerated activities.”

Thus, the causative fact for the granting of such permission, for the purposes of this consultation, is the direct care of a family member who cannot take care of himself or herself and who does not perform paid work.

Taking into account the above, it should be emphasized that the right contained in article 48.1.h of the TREBEP is conditioned, among other factors, by the fact that the relative does not perform “Any remunerated activity”.

It should be meant that the term “Paid activity” It should not be understood exclusively as being effectively performing a job, but, sometimes, the mere perception of remuneration can fit into this definition.

Thus the consultation refers to whether the situation of temporary incapacity can be assimilated to the non-performance of paid activity.

The definition of temporary incapacity itself implies a situation in which there is an employment relationship which is temporarily suspended because of a contingency which prevents its provision but which, without prejudice to cases of permanent incapacity, does not resolve that relationship.

During temporary incapacity, therefore, the employment relationship remains in force, as well as the receipt of remuneration, although, depending on the duration of the incapacity, the entity that pays these benefits may vary.

Therefore, it is understood that the situation of temporary incapacity can be subsumed in the concept of “Paid activity” of article 48.1.h of the TREBEP, not proceeding the granting of the reduction contemplated in the permit.

However, the staff member may make use of other established figures in order to facilitate the reconciliation of family and working life.

Thus, Article 48(1)(i) of the TREBEP includes the permit for very serious illness of a relative in the first degree of consanguinity or affinity, which may be granted only once for each pathological process.

For its part, the Resolution of February 28, 2019, of the Secretary of State for the Civil Service, which dictates instructions on working hours and hours of staff in the service of the General Administration of the State and its public bodies, includes in paragraph 5 the possibility of requesting reduced working hours for particular interest.

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.