The question raised relates to the possibility for civil servants who are subject to a reduction in the regular working day for reasons of particular interest to apply for entry into the regular working day during holidays, holidays or periods in which there is a special working day.

First of all, the legal framework for implementation must be analysed. The Public Administrations are competent to establish the organization of the working time of the staff in their service, in accordance with the provisions of articles 47 and 51 of the consolidated text of the Law of the Basic Statute of the Public Employee, approved by Royal Legislative Decree 5/2015, of 30 October (TREBEP).

In the field of the General Administration of the State, the Resolution of February 28, 2019, of the Secretary of State for Public Service, which dictates instructions on working hours and hours of staff in the service of the General Administration of the State and its public agencies, is applicable.

The fifth paragraph of that resolution provides for the possibility, in cases where it is compatible with the nature of the job performed and with the functions of the work centre, of staff occupying jobs whose level of destination supplement is equal to or lower than 28, to request the competent body to recognise a reduced, uninterrupted working day from 9 a.m. to 2 p.m., from Monday to Friday, receiving 75% of their remuneration.

In any case, the corresponding Unit may deny the reduced working day in the event that it is not compatible with the nature of the position and the functions of the work center, or in the event that the requirements established in said precept are not met, such denial, in accordance with article 35 of Law 39/2015, of 1 October, of the Common Administrative Procedure of Public Administrations, must be motivated.

In view of the above, the question raised focuses on the possibility of denying the entry to the regular working day to the staff who have been authorized to reduce the working day due to particular interest in the event that, repeatedly, they request this entry exclusively in the periods of holidays or holidays and in those periods of time in which the day of the center is reduced, in order to receive during those periods the totality of their remuneration, it is reported that, the criterion followed by this Executive Center may be applied, by analogy, in relation to the reduction of working day by legal guardian.

In this sense, in general, and by analogy, nothing is opposed to the interested parties being able to apply for the full day pass before the enjoyment of holidays, public holidays or special day periods, however, once it ends if it again requests the reduction of the day, it could lead to a fraud of law.

This is confirmed by the provisions of the Judgment of 14 May 1998, of the First Section of the Contentious-Administrative Chamber of the High Court of Justice of Galicia, in a case in which a civil servant wanted to establish specific periods for the enjoyment of the permit for the reduction of legal custody according to her interests, establishes in its Second and Third Legal Bases the following:

“ (…) It is obvious that the appellant does not intend to make use of the reduction in working hours during the periods of continuous school hours or during school holidays, but rather during the remaining periods, thus temporarily allowing her unilateral choice to enjoy the reduced working hours. It is also obvious, however, that the purpose of the rule in which the appellant tries to find support for her claim, which is none other than to make the work compatible with the care and attention of the child, is not exactly the same as that pursued by the perpetrator who, apparently, seeks only the full receipt of her remuneration outside those non-school periods or periods of continuous working. (…)

The reason why the reduction of the working day is granted is because of the specific need to seek, without detriment to paid work, the care and attention of the minor or the handicapped; that is why such a reason exists or does not exist, what does not seem logical is that it appears and disappears according to the interests of the applicant, temporalizing his request in the form that suits him.”

Therefore, in the event that these requests are repeated and relate exclusively to holidays, holidays or special days, they may be denied in a motivated manner if, according to the concurrent circumstances, the Personnel Unit considers that they may constitute a fraud of law.

In conclusion, nothing obstructs the request for the change on an ordinary day, without prejudice to the Personnel Unit assessing whether there is fraud of law in the conduct of the public employee.

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.