Netherlands: Dutch Legislation on Study Costs Clause Tightened

With the enforcement of the Transparent and Predictable Conditions of Employment Act on 1 August 2022, the legislation regarding the study costs clause was also changed. Employers must offer compulsory study and training courses to their employees free of charge.

The study costs clause: then and now

In case an employer is enabling an employee to study or train and is paying for the study or training, it is common to include a study costs clause in the employment agreement. In many cases, such a clause stipulates that the employee must repay (part of) the study costs if he or she leaves the company during or within a certain time after completion of the training.

Prior to 1 August 2022, this practice regarding study expense clauses was not regulated by Dutch law. Whether a repayment arrangement under the study expense clause was reasonable had to be tested on a case-by-case basis.

However, the Transparent and Predictable Terms of Employment Act entails that, as of 1 August 2022, employers must offer compulsory training courses to their employees free of charge. Only study costs for non-compulsory training can be reclaimed by employers.

Compulsory education: what does it entail?

It is unclear what is meant by compulsory training, due to a lack of case law up to this point. In any case, it is clear that training should be considered compulsory:

1. When a specific law imposes an obligation to offer training.
2. When a collective agreement includes an obligation to offer training. This is the case, for example, in the Dutch Universities collective agreement, the Sweets collective agreement and the Nursing, Care Homes, Homecare and Youth Health Care collective agreement. This enumeration is not exhaustive.
3. When this follows from the general training obligation contained in Section 7:611a of the Dutch Civil Code. Based on this general training obligation, the employer must offer training that is necessary for:
   1. Performance of the job, and;
   2. For the continuation of the employment contract.

Training necessary for the continuation of the employment contract may include:

• Training for own or suitable work during illness;
• Training as part of an improvement plan; or
• Training in the context of redeployment.

Training that is ‘nice-to-have’ – i.e. aimed at employability or increased professional competence – is not included.

Nullity

In the case of compulsory study or training, these costs cannot be reclaimed by employers (anymore). Any clause contrary to this – such as a study costs clause – is null and void. From 1 August 2022, these clauses can no longer be successfully invoked, regardless of when they were established.