On 1 August 2022, the Transparent and Predictable Conditions of Employment Act entered into force, which also changed the rules on the study costs clause. There was (and still is) quite a bit of uncertainty about these new rules, laid down in Section 7:611a of the Dutch Civil Code, as we wrote in our earlier blog. In the meantime, new rulings have been published on the study costs clause, which shine a (slightly) clearer light on the (im)possibility of agreeing on a study costs clause with an employee.
Study costs clause for and scope of a “professional qualification”
In our previous blog, we described that if a professional qualification, diploma or certificate is required for a certain profession, before the start of the position, the training for obtaining, maintaining or renewing this does not fall under compulsory training, regardless of whether the position is regulated (i.e. included in the Regulation establishing the list of regulated professions) or not.
This has been confirmed in a judgment of the District Court of Midden-Nederland. The employer and employee in this case had agreed on a study costs clause for obtaining a certain type of driving licence. The employee actually needed this driving licence (already) at the start of the employment: he had been hired to go on the road as a self-employed furniture repairer to visit customers. During the first months of employment (after starting), the employee would learn the trade of furniture repairer and qualify for the appropriate driver’s license.
In this judgment, the court considered that obtaining the driver’s license does not concern training that should be offered free of charge by the employer according to Section 7:611a of the Dutch Civil Code, because it follows from the legislative history that training that – in short – is necessary for a professional qualification does not fall under this article, unless the employer is obliged to offer the training on the basis of a collective labour agreement or statutory provision.
In doing so, the court considered that the legislative history for professional qualifications is in line with the Professional Qualifications Directive, but it may be assumed that, in principle, the costs for other qualification diplomas are also not covered by the employer’s obligation to reimburse. Because this case (therefore) concerned a professional qualification, the study costs clause had been validly agreed and the employee therefore had to repay the costs.
In a recent judgment of the District Court of Midden-Nederland, an employee, a truck driver, had taken two courses at the employer’s expense before the start of the employment contract. Passing the courses (qualifications) was mandatory in order to be able to drive a truck professionally. At the end of the employment, the employer deducted the course costs from the salary. The employee argues that this should not have been allowed.
In this judgment, the court considered: (i) that Section 7:611a of the Dutch Civil Code applies to employees and employers and therefore in principle does not apply to courses taken prior to the employment contract; and (ii) Section 7:611a of the Dutch Civil Code does not apply to such courses that the employee must have at the first start of employment, unless the employer is obliged to do so on the basis of the law or collective labour agreement. Again, this case did not concern a qualification for a regulated profession; Once again, therefore, it is confirmed that qualifications for non-regulated professions are also not subject to the employer’s obligation to pay compensation.
It was therefore possible to agree on a study fee. However, the set-off that the employer had applied was not justified. It was not clear to the employee that he had entered into a repayment obligation. Therefore, the employer was not allowed to set off after all. It is therefore important – if a study costs clause is permitted – to clearly record the agreements. In addition, jurisprudence has developed rules of thumb with which such a clause will have to comply (substantively).
Training necessary for the position?
In an unpublished judgment of the District Court of Gelderland, an employee, a driver, had obtained certain driving licences during his employment, paid for by the employer. To this end, a study costs clause had been agreed. At the end of the employment contract, the employer was entitled to reimbursement. The court then considered that the study costs clause was valid in principle, because there was no question of compulsory training: the employee could also perform the job without the specific driving licences. In this case, too, however, the employer was ultimately left empty-handed, because (again) no clear agreements had been put in writing.
It turned out better for the employer on which the Rotterdam District Court ruled. In this judgment, the court also considered that the training was not necessary for the position (of first mechanic) and that it was therefore possible to agree on a study costs clause. Moreover, the study costs clause in this case met the requirements set out in case law and the employer was therefore able to reclaim the study costs.
In a ruling by the District Court of Midden-Nederland, two employees were trained to become asbestos inspectors/analysts. It is important to note that this case concerned internal (additional) training and not training that the employees were already required to have at the start of the job. However, the training was made compulsory by the employer and therefore the training was seen as compulsory training, so that no study costs clause could be agreed. For the sake of completeness, it was also considered that this employer had also insufficiently informed the employees about the consequences of the study costs clause and therefore could not have held them to the clause.
Conclusion
Under the current legislation, it is still possible to agree on a study costs clause. It follows from case law that this is still possible if – in short – the training is: (1) the training is not compulsory (but voluntary); or (2) it concerns training necessary for the acquisition or maintenance of professional qualifications (whether the profession is regulated or not); or (3) the training was completed prior to employment. What case law also makes clear is that if it is possible to agree on a study costs clause, it must meet the strict substantive requirements that apply to it.
For further information, please contact:
Ron Andriessen, Partner
Labré advocaten, Amsterdam
e: ln.erbal@nesseirdna.nor
t: +31 20 3052030
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