The study cost clause – the first ruling

Since the introduction of the Transparent and Predictable Employment Conditions Act, the tenability of the study cost clause has been unclear. Since the Act entered into force, the employer has been responsible for training that is ‘necessary’ for the employee’s job, according to the principal rule. But which training is ‘necessary’ and which is not?

‘Necessary’ professional training

The obligation to provide training free of charge does not apply to professional training or training that employees are obligated to take in order to obtain, maintain or renew a professional qualification. Obviously, you might say. A lawyer, for instance, receives three years of training and may practise the profession indefinitely only after successful completion of the professional training. That is expressly stipulated in the Advocatenwet (Lawyers Act). It is painfully ironic, however, that lawyers do not know whether ‘their’ professional training is ‘necessary’ within the meaning of the law. Some people argue that professional training for novice lawyers is ‘necessary’ under the Transparent and Predictable Employment Conditions Act (see, for instance, this article). It follows from that line of reasoning that no study costs clause may be agreed with a novice lawyer for that costly professional training. Lawyers would not be lawyers if they did not debate with each other. That interpretation is seen by some as too broad, not in keeping with the legislature’s intention, and unreasonable. The reason for citing the debate is to illustrate the ambiguity of the law, in the sense that if even lawyers do not know whether their own professional training is covered by the law, then how can a ‘normal’ employer know.

Utrecht Subdistrict Court

The Utrecht Subdistrict Court was recently presented with a case from the world of accountancy and financial consultancy. An employee of an accounting firm took the position at the end of his employment contract that his study contract was void under the new Act. He had been training to become a chartered accountant, which he claimed was a ‘necessary’ course. He argued that his employer had hired him with the intention of having him perform work as a chartered accountant in the future and therefore being able to sign financial statements.

The employer expressly disputed that the employee had been hired with the intention of working as a chartered accountant and that it was therefore necessary for him to complete the training. It had simply played no role when the employment contract was entered into. According to the employer, the training courses for which the study contract had been entered into were therefore not necessary.

The employer made it plausible that there was no need within its small organisation for the additional signing authority of another chartered accountant. The court therefore did not subscribe to the employee’s position that the study agreement was void and ordered the employee to repay the study costs to the employer. An additional consideration in this case was that the study agreement stated the employee’s intention to advance his career and that the employee had requested the employer to finance the study on that ground.

Conclusion

The latter directly constitutes the lesson to be drawn from this ruling. If you, as an employer, receive a request from an employee to finance a study that is not necessary for the performance of his or her work, that context should be recorded in the study agreement and it should be expressly stated that the employee made the requested to follow that study and to have it financed by the employer. It is then still possible to enter into a study costs agreement.

Please contact Michiel van Haelst (+31-6-553 944 87)  for more information on this subject.

This article was published in the Newsletter Vestius of February 2023