Study cost clauses no longer permissible in all cases

New labour law rules as of 1 August 2022

Earlier this month, we informed you that Dutch employment law will change as a result of the EU Directive on Transparent and Predictable Working Conditions. The necessary changes will also be made in the area of study costs clauses. Employers will no longer be able to reclaim the costs of compulsory training from employees.

What is a study costs clause?
It is not unusual for an employment contract or a separate study contract to contain agreements between the employer and the employee on the training courses to be followed by the employee. These agreements often stipulate that the employee must repay the costs of his or her training, for example if he or she does not complete the training or resigns within a certain period. Such a study costs clause usually contains a phasing-out clause (sliding scale).

What will be the future rules?
First, it is important to distinguish between compulsory and non-compulsory training. The law will probably read as follows in article 7:611a paragraph 2 of the Dutch Civil Code:

"If the employer, on the basis of applicable Union law, applicable national law, a collective labour agreement, or a regulation by or on behalf of a competent administrative body, is obliged to provide training to his employees in order to carry out the work for which they have been hired, the training referred to in paragraph 1, offered to the employees free of charge, shall be regarded as working time and, if possible, shall take place during the times when work has to be done".

Compulsory training is training that is required by law or collective agreement for employees in a particular position. Employers must offer this training free of charge. The costs can no longer be recovered from employees. Existing study-cost clauses on compulsory training are null and void. Employees must also be given the opportunity to follow compulsory training courses during working hours.

For non-compulsory training, reimbursement agreements can be made and training can be followed outside working hours.

The distinction between compulsory and non-compulsory training is therefore becoming very important. The legislator has stated that 'compulsory training' exclusively concerns obligations imposed on the employer to provide training, on the grounds of national law, a collective agreement or European law. This usually concerns training in the field of safety and working conditions (e.g. maintaining professional competence). According to the legislator, it does not concern the obligation of an employee to follow certain training in order to maintain his professional qualification.

An existing study-cost clause is therefore null and void (not legally valid) if it concerns compulsory training. The new rules will probably enter into force on 1 August 2022. According to the European Directive there is no room for transitional law. We therefore advise employers to take a good look at existing employment contracts and study contracts.

Do you have any questions about the study costs clause or other labour law issues?
Please feel free to contact the experienced team of employment lawyers at SPEE advocaten & mediation. Of course we will keep you informed of further developments regarding the Directive and related topics.

SPEE advocaten & mediation Maastricht