Compulsory education and study-cost clause: all points of attention for employers
As an employer, you like to keep your employees’ knowledge up to date. This is important for the sustainable employability of your personnel and it can create more productivity within the organisation. Thus, a win-win situation.
But staff training requires investment. If the employer invests in an employee, the wish is of course that the employee will remain in service for a long time. But what if that employee leaves anyway? Who pays for the training if the employee leaves the company during or after the training?
Labour law has the necessary rules to deal with this. In this article we discuss all the points of interest for employers regarding the training of employees, namely the legal training obligation, training costs and the study costs clause.
Training obligation of employees
The law (Article 7:611a BW) stipulates that the employer must enable its employees to follow (1) the training necessary for the performance of their duties and (2) the training necessary for the continuation of the employment contract when the employee’s position is no longer held, if this can reasonably be expected of the employer (training in connection with redeployment). This implies an obligation for the employer to invest in employees by means of training. An employee is expected to make efforts as a good employee to accept the training and to complete it successfully.
Attention: see also heading “Change to training obligation and study costs clause as per 1 August 2022”.
Training necessary for the performance of a function
We will now zoom in on the first part, the necessary training for the execution of the position. It concerns necessary training. This includes training that is compulsory by law or by an external party (collective labour agreement or governing body). In addition to offering the training, the employer must also enable the employee to follow the training. The employer must make regular working hours available for the training activities.
Does the organisation have a CAO? Check it for the specific rights and obligations with regard to training.
Training in case of malfunctioning
The aforementioned training obligation is also important in a situation where the employee does not function. If there is dysfunction and this can be resolved through coaching or courses, it is up to the employer to offer support in the form of training. Are you, as an employer, not making enough effort? This can lead to serious culpability and the associated fair compensation.
Training costs to be borne by employer or employee?
In principle, the employer has to finance the necessary training mentioned above and training in the context of redeployment. Is the training not necessary? Then the employer does not have to finance it. If the employer does pay for the training, this can, under certain conditions, be deducted from the transitional allowance.
Study Costs Clause
As mentioned, a training course is an investment. An investment that the employer would like to recoup. This is not possible if the employee leaves shortly after completing the training. To prevent this becoming an empty investment, a study costs clause can be agreed. The education costs clause provides that an employee, if he or she resigns (or if the employer’s resignation is at the employee’s risk), must repay the training costs to the employee. Please note: in principle, an employer cannot invoke the training costs clause if the initiative for dismissal or non-renewal of the employment contract lies with the employer, unless other agreements have been made. For example, it may be agreed that the employee must repay the study costs if he is summarily dismissed or in the event of serious culpability on the part of the employee.
This study costs clause is not (yet) regulated by law, but case law has laid down a number of requirements:
1. The financial consequences (concrete amounts) of the clause and when it comes into effect must be properly explained, preferably in writing;
2. The period during which the employer will benefit from the study (and the resulting knowledge and skills) must be established;
3. The repayment obligation must decrease proportionally on the basis of the established period mentioned under 2 (sliding scale).
Even if the foregoing has been arranged well, it may be that the employer cannot invoke the study costs clause. This is the case if after the study costs have been deducted, the employee’s salary falls below the statutory minimum wage. Furthermore, invoking the study costs clause may be unacceptable according to the standards of reasonableness and fairness.
Change to training obligation study costs clause as of 1 August 2022
On 1 August 2022, new rules will be introduced in Dutch law regarding the training obligation and the study-costs clause. Based on the European Employment Conditions Directive (click here for more information about this directive), the employer is obliged to offer a study free of charge if (1) the study is compulsory on the grounds of the law, the CAO or regulation of a competent administrative body and (2) the study is necessary for the performance of the duties. If a study costs clause is nevertheless agreed for this compulsory or necessary training, the clause will be null and void. These are clauses whereby the costs of training are recovered or set off against monetary income arising from the employee’s employment.
Please note: training or education that employees are obliged to take in order to obtain, maintain or renew a professional qualification, does, in principle, not fall under mandatory training as referred to under 1. Therefore, a study-costs clause would be agreed upon with regard to such training. The question is how this will work out exactly in the Netherlands if a course of study is not compulsory, but necessary for the performance of the duties.
Do you need a lawyer in Rotterdam to advise you on the obligation to study and the study costs clause?
The above shows that agreeing and invoking a study costs clause is not self-evident. So think carefully about the exact wording of the education costs clause and consult an employment lawyer. If you want to invoke the clause, first get advice on your chances. If you would like to know more, please contact Lisa Kloot of LVH Advocaten.
