Netherlands: Study Cost Clauses in Dutch Employment Contracts No Longer Valid for Mandatory Training: Legal Implications and Recent Developments

The Transparent and Predictable Employment Conditions Act entered into force on 1 August 2022. In accordance with this act, the provisions of the Dutch Civil Code have been supplemented. If the employer is obligated to provide training, it must be provided to the employee free of charge, thereby qualifying the time devoted to the training as working hours.

Furthermore, it is no longer permissible to incorporate a study cost clause in an employment contract or staff regulation when mandatory training is required. In January 2024, Dutch case law affirmed the invalidity of the study cost clause in specific branches.

 

Study cost clause

In the Dutch Civil Code, it is specified that employers are obligated to ensure that employees have access to training essential for the performance of their duties. Since the enactment of this legislation, that provision mandates employers to provide mandatory training free of charge. Any clause (such as a study cost clause) contravening this provision is deemed null and void.

 

Mandatory training

Mandatory training includes training that must be offered in accordance with applicable union law, national law, a collective labour agreement or a regulation with an authorised governing body. However, it does not cover training solely aimed at obtaining a diploma or certificate required by law for performing the job duties upon initial employment.

In recent Dutch case law, it has been affirmed that both legal training for lawyers and training for tram drivers are considered part of the employer’s general obligation for education and must, therefore, be provided free of charge. This implies that the study cost clause agreed upon within these employment contracts is considered a void clause. Be aware that judges increasingly apply this principle, indicating a growing trend in the judiciary.

Key Issues

• The Transparent and Predictable Employment Conditions Act came into force on 1 August 2022.
• The act prohibits employment agreements and staff regulations, including study cost clauses for mandatory training.
• Increasing judicial application indicates a growing trend that mandatory training for employees must be provided free of charge and, thus, agreed study cost clauses are considered to be null and void.

Key Action Points for Human Resources and In-House Counsel:

• Clarify the differentiation between mandatory and optional training.
• Review and revise the current cause to align with the new legislation. Ensure that all employment agreements and staff regulations adhere to the revised legislations, verifying that the existing study cost clause conforms to the new legal requirements.