As a result of the introduction of the Transparent and Predictable Terms of Employment Act (“Wtva”), as of August 1, 2022, it is no longer possible to agree on a repayment arrangement for study costs related to “compulsory training”. Compulsory training must be free of charge for the employee and, if possible, must be followed by the employee during working hours. However, based on the legislation and legislative history, it is not clear in many cases whether a certain training should or should not be considered mandatory training.
A difference of opinion on this issue was decided by the Central Netherlands District Court in a judgment dated December 19, 2022 (published January 10, 2023). This ruling provides an initial starting point for answering the question of what does and does not qualify as compulsory training.
What was the case about?
A small accounting firm had entered into a study agreement, which included a repayment arrangement, with an employee who began employment on January 1, 2021. This study agreement related, on the one hand, to the employer’s assumption of a study debt that the employee had with his previous employer and, on the other hand, to the financing of a study that the employee started in January 2021.
The employee terminates his employment contract himself on August 16, 2022. The parties subsequently agree that the employment will end on August 31, 2022. Afterwards, a dispute arose between the parties as to whether the employee was obliged to repay his study expenses. In the ensuing proceedings, the employer claimed repayment of the study costs paid by the employee. In response, a counterclaim is filed by the employee seeking a declaration that the study expense clause is void. In support of this request, the employee relies on the new legislation that came into force on August 1, 2021.
Position of employee
In the proceedings, the employee argued that the courses in question qualify as necessary training within the meaning of Section 7:611a of the Civil Code and thus qualify as compulsory training. Therefore, the employer would not be able to claim reimbursement of the study costs. According to the employee, he was hired by the employer to work as a chartered accountant (in the future). The training would be necessary for that position.
Position of employer
It is disputed by the employer in the proceedings that the employee was hired with the intention of working as a chartered accountant in the future. It is also disputed that, in that context, attending the training started on January 1, 2021 would be necessary. That the employee would eventually be able to work at the firm as a chartered accountant would have been reasonable in the future, according to the employer, but no agreements had been made about this. Nor would this have played any role in entering into the employment contract with the employee. According to the employer, the courses for which the study contract was entered into were not necessary for the position for which the employee had been hired. Moreover, similar work was also performed by other employees without comparable training. The study contract also expressly stipulated that the employee himself had asked to take the training course that started on January 1, 2021, and that he had asked the employer to finance the costs involved.
What does the district judge rule?
The Subdistrict Court agreed with the employer that nothing showed that the employee had been hired with the aim of becoming a chartered accountant with the employer and that the training courses for which the study contract was entered into would be necessary for that intended position or the position for which the employee had been hired. The Subdistrict Court further considered, among other things, that it had not been shown that the employer had made a commitment to the employee when he would become a signatory and that it had been explained by the employer that there was no need for this in the employer’s organization either. This in combination with the fact that the study agreement stated that the employee wanted to follow the study in question as part of his further development and that, within that framework, he had asked the employer to finance the study, leads the Subdistrict Court to the conclusion that there is no question of the employee having followed a necessary study. The consequence of that conclusion is that there is also no question of a “compulsory education” within the meaning of Section 7:611a (2) of the Civil Code. In the opinion of the Subdistrict Court, the study costs clause is therefore legally valid. This means that the employee must repay the study costs to the employer insofar as they have not (yet) been waived pursuant to the study contract.
Conclusion study expense clause
When assessing whether or not training is necessary within the meaning of Section 7:611a (1) of the Dutch Civil Code, and thus whether or not a study-expense clause is legally valid, all the individual circumstances of the case are important. When a study cost clause is agreed with an employee, it is therefore wise to assess and record whether or not the training is necessary and on whose initiative the training is started and for what purpose.
See also
