The new rules on study costs, resulting from the Act on Transparent and Predictable Working Conditions (Wet Transparante en Voorspelbare Arbeidsvoorwaarden, “Wtva”)) entered into effect more than six months ago. Under this act, employers were already obliged to enable employees to follow training necessary for the performance or retention of their job. Since 1 August 2022, such training must be compensated by the employer when its offering by the employer is mandatory by law or a collective labour agreement.
The Wtva is the implementation of a European Directive. It follows from preambles to that Directive that the obligation to provide training free of charge does not apply to vocational training or training required for employees to obtain, maintain or renew a professional qualification. Although the exception was mentioned by the Minister in the discussion of the act in the Netherlands, it was not included in the act in so many words. Since this exception is not set out in the act, a debate has arisen in literature on the question whether training should be offered by the employer free of charge. The Subdistrict Court of Zwolle has recently expressed an opinion on this.
What was the judgment of the Subdistrict Court about?
This case concerned an employee who had joined a certified occupational health and safety service as an ANIOS (senior house officer), and was following a course there, besides his work, to become a registered company doctor. This course was mandatory for the performance of his future position as a company doctor. It had been agreed in a study costs clause that the employer would advance the costs of the course. The costs of the course were €47,000, which amount could still increase if the employee would spend time on the course during working hours. Besides, the costs of supervision and peer review would still come on top of this. It had been agreed that the employee would repay (part of) the study costs if the employee would terminate the employment before the course had been successfully completed.
The employee terminated the employment agreement before completing the course. Although the employer warned him about the substantial repayment obligation, the employee did not change his mind. Then the employer claimed a repayment of nearly €73,000. These were the costs of the course, increased by the costs incurred for supervision, peer review, and the hours the employee had spent on the course during working hours. The employee took the position that the study costs clause was null and void. According to the employee, the course was mandatory training that the employer had to offer free of charge because it was necessary for the performance of the position of company doctor.
What did the Subdistrict Court think of this?
The Subdistrict Court did not agree with the employee. Trainings employees have to follow in order to obtain, maintain or renew a professional qualification are excepted from the obligation to offer training free of charge. Such trainings are listed in the annex to the Professional Qualifications Directive. The company doctor’s course is mentioned in this list, and therefore a reliance on the nullity of the study costs clause cannot succeed. However, the Subdistrict Court does believe that the costs of supervision and peer review should be reduced, since the employer did not timely provide clarity about the level of these costs. Eventually, the employee has to repay the employer an amount of study costs of more than €45,000.
What happens next?
For the first time, a court has expressed an opinion about the compensation of costs of trainings employees have to follow in order to obtain, maintain or renew a professional qualification. However, it is doubtful if the opinion of the Subdistrict Court will stand up on appeal. After all, the law says that the employer has to enable the employee to follow free training that is necessary for the performance of the job.
A vocational training, such as that of company doctor, can still be a training that is necessary for the performance of the job. In this ruling it was also expressly included in the employee's study costs clause that the company doctor training was mandatory for the performance of the job. The Subdistrict Court has not taken this into account in its opinion and has based itself on the exception from the preambles in the Directive.
The question is what the opinion of the Subdistrict Court would have been if this exception had not been applied. Possibly, the Court would have regarded the training as ‘necessary for the job’ and consequently as a mandatory job, which had to be paid by the employer, even though it was a ‘future job’ in this case.
What does this mean for practice?
Although the Wtva entered into effect some time ago, there is still a lack of clarity about the scope of the obligation for employers to offer training free of charge. When making arrangements about study costs, it is therefore important to take into account whether the training is necessary for the employee’s job. If it is, a clause that says the employee has to pay the training costs personally may be null and void.
