Netherlands: Will the Study Costs Clause No Longer be Allowed?
1 August 2022 is the deadline for the Netherlands to have implemented the European Directive on transparent and predictable terms of employment. The directive includes an improved information obligation of the employer and new minimum rights for the employee. An important result of the directive is an adjustment of the current training obligation of the employer and the effect it will have on the study costs clause.
The current training obligation
The employer has an obligation to provide training for his employees. This means that the employer must enable the employee to follow training that is necessary for the performance of his/her position. This obligation also applies when the position of the employee has ceased to exist or when the employee is no longer capable of fulfilling the position. Vocational training and training to maintain the professional qualification are excluded from this.
In principle, the employer pays the costs of the training. However, the current training obligation does not affect the agreement of a study costs clause.
The study costs clause
Because the employer wishes to maintain the acquired knowledge of the employee, a study costs clause is often included in an employment contract. A study costs clause implies that if the employee leaves the company within a certain period of time after having completed the training, he/she has to refund (part of) the study costs to the employer. A number of conditions are attached to a legally valid study costs clause:
- the agreement must be in writing;
- the agreements must be clear;
- the obligation to refund the study costs must be limited to a certain period of time and there must be a sliding scale (the longer the employment, the lower the costs).
The directive as of 1 August 2022
The directive states that when the employer is obliged (by law or a collective labour agreement) to provide the employee with training for the purpose of the job, the training:
- is offered free of charge to the employee;
- is considered working time; and
- if possible, takes place during working hours.
This means that, as of 1 August 2022, a study costs clause will most likely no longer be validly agreed upon. After all, such a clause would mean that the training is no longer free of charge for the employee. For non-compulsory training, it will remain possible to agree on a study-costs clause.
In 2018, however, the government took the position that a study costs clause must remain possible, even with the new training obligation in the directive. Whether the government will maintain this position, will follow from the legislative proposal implementing the directive.
Implementation of the directive
It is not yet known how the directive will be implemented. It is also uncertain whether and in what form a transitional regulation will be introduced.
Key Action Points for Human Resources and In-house Counsel
As of 1 August 2022, a study costs clause will most likely no longer be validly agreed upon. After all, such a clause would mean that the training is no longer free of charge for the employee. For non-compulsory training, it will remain possible to agree on a study-costs clause.