He agrees with the father of a minor who requires “direct, continuous and permanent care” despite being in school
MADRID, 1 Nov. (EUROPA PRESS) –
The Supreme Court has recognized the right to obtain a 50% reduction in working hours –with full salary maintenance– to care for minor children with serious illness and recognized disability in cases where they are not hospitalized but require “continuous” care even when they are in school.
In a sentence, to which Europa Press has had access, the magistrates have studied the case of a secondary school teacher from the Community of Madrid who asked to reduce his working day by half and maintain his salary in order to take care of his youngest daughter.
In the resolution, of which the magistrate Celsa Pico has been a rapporteur, it is stated that the minor, qualified with an “extremely serious illness”, has autism spectrum disorder with severe behavioral disorder and mental retardation, with a recognized degree of disability 69% and with a positive mobility scale of difficulty.
The man went to the Supreme Court after the regional government and the Superior Court of Justice (TSJ) of Madrid rejected his request. Specifically, the Community of Madrid argued that it had not been proven that the minor needed direct, continuous and permanent care “comparable” to what she would need if she were hospitalized, which is one of the requirements set out in article 49.e) of the Basic Statute of the Public Employee.
The Administration indicated that it did not question the needs of the minor, because her clinical picture was clear, but considered that “during her schooling these care needs are covered.” The Madrid Supreme Court endorsed the autonomous community’s argument.
The girl’s father, however, insisted before the Supreme Court that – although the minor is enrolled in a school with therapists and specialized professionals – sometimes she must go to training sessions, to help during school hours or to pick up his daughter “at the slightest inconvenience”. In addition, the man stressed that there is no school route that allows the minor to go to the center without the help of the parents, “which is not always compatible with the working day.”
Faced with this scenario, the magistrates have agreed with the parent and have declared the appeal he filed against the Madrid TSJ ruling to be valid.
In 21 folios, the Fourth Section of the Contentious-Administrative Chamber has established doctrine by establishing that article 49 e) of the Basic Statute of Public Employees, which includes the right to reduce the working day and maintain full remuneration in cases of care of children due to serious illness, also applies when “hospitalization of the minor is not necessary, but direct, continuous and permanent care is necessary, even if the minor is in school”.
