Implementation of the Directive on transparent and predictable employment conditions (part 1): training obligation and study cost clause

On August 1, 2022, the law implementing the
EU Directive on transparent and predictable terms of employment will (most likely) take effect. This blog is the first in a series of blogs explaining the main changes from that bill one by one.

This first blog discusses the changes related to the training obligation for employers with respect to employees - and the study expense clause often associated with it. The purpose of these changes is to make employers, in most cases, pay for the costs of employee training.

Schooling requirement

The training requirement before the bill comes into effect

Employers have a legal obligation to provide their employees with the training necessary to perform their jobs. Without such training, the employee may not or cannot perform his or her duties. Training is necessary, for example, for a forklift driver, who must obtain his forklift certificate. In addition, as an employer, you must offer training when an employee's job becomes redundant or the employee is no longer able to perform his own job properly. This obligation refers only to training that can "reasonably" be required of you as an employer.

The training obligation may also follow specifically from the law, the applicable collective bargaining agreement or the individual employment contract and may even be based on the standard of good employment practice.

The training obligation after the bill enters into force

The new law significantly expands the regulations regarding the obligation to train, but the basis described earlier remains. The training obligation is thus present for the employer, when there is

• necessary training;
• training due to job loss; or
• malfunctioning.

The bill additionally provides far-reaching consequences for mandatory training. Training for the employee is mandatory when that training obligation for the employee arises from law or a collective bargaining agreement. Necessary training and training in connection with the loss of a job or inadequate performance also qualify as compulsory training.

In this case, the costs of the training, including travel expenses and study materials, will be borne by the employer. The time the employee spends on training must be considered working time. If the possibility exists, as an employer you are even obliged to offer the training during working hours. Even the time the employee spends on mandatory training that cannot be performed during working hours must still be considered working time.

Several training courses and functions are excluded from application of the new rules. For example, the regulation does not apply to vocational training or training that employees are required to attend in order to obtain, maintain or renew a professional qualification, as long as employers are not required to offer it under European law, national law or a collective bargaining agreement. The legislature has drawn up a list of such professions that are in any case excluded from the new regulation. Incidentally, the bill specifically exempts domestic workers from the statutory training obligation.

Study expense clause  

The study expense clause before the bill came into effect 

When employees undergo training at the employer's expense, the employer (currently) has the option to include a clause in the employment contract requiring the employee to remain employed by the company for a certain period of time after the contract ends. This often comes with a financial penalty in the form of reimbursement of the training costs.

A study expense clause has no specific legal restrictions, but it follows from case law that such a clause should in principle meet some conditions. For example, it is important that the repayment obligation decreases proportionally with the continuation of the employment contract after completion of the training. An example of this would be a clause stating that the employee must repay a lower percentage of the total training costs each year after completion of the training in the event of termination of the employment contract.

Mandatory reimbursement of such expenses is quite drastic for employees. For this reason, employers may be required to clearly set out the reimbursement scheme to their employees.

In many cases, the initiative of the termination of the employment contract determines whether a study expense clause is actually effective. If the employee initiates the termination himself, there is a chance that he or she will have to repay (part of) the study costs. If the employer initiates the termination or non-renewal of the employment contract, a reliance on a study costs clause will regularly not be granted (by the court).

The study expense clause after the bill takes effect

The new regulations have hefty implications for study expense clauses. This also applies to study expense clauses that are currently validly agreed. A clause in which the costs of mandatory training are recovered from the employee, or set off against the employee's income, is null and void and thus has no effect. The costs of compulsory training may not be borne by employees. In this regard, it does not matter whether or not the training was properly completed and/or who initiated the termination of the employment contract. Study cost clauses agreed before August 1, 2022 are also subject to this regulation and are therefore null and void under the aforementioned circumstances.

Compulsory education is therefore also relevant with regard to the study costs clause. This means, by the way, that study expense clauses concerning reimbursement of educational expenses for non-compulsory training can still be legally agreed upon under the existing conditions that follow from case law.

Conclusion

If you offer training to your employees, it is advisable to determine whether it is mandatory training so that you can determine which rules do and do not apply. In that case, after the bill takes effect, you must offer the training free of charge and give your employee the option of taking the training during working hours. A study cost clause will only have effect after it comes into force if there is non-compulsory training.

The employment contract used by your company may no longer be up-to-date after the bill comes into effect. Please contact Annemarie van Woudenberg or Bas Blaauwhof so that we can reassess your employment contract and adjust it in accordance with the (new) regulations.