With the Transparent and Predictable Working Conditions Act as of 1 August last year, the rule was introduced that employers are not allowed to make repayment agreements with employees when it comes to ‘compulsory’ training. What exactly is meant by this is still a point of debate. A recent ruling by the subdistrict court in Den Bosch provides some more insight.

What about the study costs clause?

Let us first provide some background information. As of 1 August last year, employers are no longer allowed to make repayment agreements with employees for compulsory training. Also, such training must be carried out during working hours. Study cost clauses are therefore a thing of the past, as far as this compulsory training is concerned.

Section 7:611a paragraph 2 of the Dutch Civil Code stipulates: “Where the employer is obliged under applicable Union law, applicable national law, a collective labour agreement, or a regulation by or on behalf of a competent administrative body for that purpose to provide training to his employees in order to perform the work for which they have been hired, the training referred to in paragraph 1 shall be offered free of charge to the employees, shall be considered working time and, if possible, shall take place during the times when work is to be performed.”

Existing study cost clauses on compulsory training that do not meet the requirements have been null and void since 1 August last year.

Den Bosch subdistrict court ruling

An case dealt with by the subdistrict court in Den Bosch this month involved an employee who joined an audiology company for two years, as a trainee audiologist. He attended school one day a week and worked four days a week. For the training to become an audiologist, the parties agreed on a study cost clause: if employee resigned within a certain time after completing the study, he would have to repay the cost of the training (in whole or in part).

Eventually, after completing the training, the employee indeed wants to work for another auditing company. He argues that the study costs clause is null and void: the training is, in fact, necessary to fulfil the position as an audiologist.

But the subdistrict court decided otherwise: in this case, the study cost agreements were in fact about a (vocational) training course that the employee is obliged to take in order to obtain, maintain or renew a professional qualification, which the employer is not obliged to offer under Union law, national law or a collective agreement. This falls under the heading of ‘training for obtaining a professional qualification’and does not fall under compulsory training within the meaning of Section 7:611a (2) of the Dutch Civil Code.

The study costs clause is therefore legally valid, also because the employer has sufficiently informed the employee about the financial consequences of the repayment obligation and because the clause contains a sliding scale. In other words, less has to be repaid the longer the employee has worked for the employer after completing the course.

Read the ruling here.

Advice

We advise employers who would like to draft study cost clauses to check them carefully. This is because the relatively new legislation may raise questions and the consequences are serious: study cost clauses that do not comply with the law are null and void. Would you like us to have a look at your study cost agreement? Engage SPEE advocaten & mediation!