As from 1 August 2022, new rules apply to mandatory employee training. For example, such training should as far as possible take place during working hours. Existing tuition fee clauses may also be invalidated. What measures do employers have to take to comply with the new regulation?
The new regulation implies that mandatory training must be offered to employees free of charge. The time an employee spends on mandatory employee training counts as working time. The employer must reimburse all the costs the employee incurs in connection with the mandatory training. Thus also potential travel expenses, study materials, books and exam fees. Under the new regulation, a tuition fee clause which provides that the employer can recover the costs for mandatory training from the employee becomes null and void. In addition, the employee cannot set off the costs for mandatory training against transition compensation.
When is training mandatory? The new law stipulates that it concerns training that follows from the law or a collective labour agreement.
It concerns training that is necessary for the (continued) performance of the job, such as training in the field of professional skills or safety. Examples include training an employee has to follow in order to work with a new computer system introduced by the employer. Or training employees have to follow in the context of an improvement programme, for example when it turns out an employee does not speak English well enough, while the employer considers it necessary for the performance of the job. Limited training that allows for reassignment instead of dismissal is also covered.
The regulation does not cover training that is necessary to obtain a diploma or certificate that employees must already have at the start of their employment in order to be allowed to perform a certain function under a statutory provision. For example teacher training: Only after obtaining a teacher training certificate a teacher is qualified to teach. Also excluded are (professional) training courses employees are required to attend to obtain or maintain a professional qualification for so-called “regulated professions”. These include, for example physiotherapist, sworn interpreter, crane operator or gas measurement expert.
A tuition fee clause is often included in an employment contract. With a tuition fee clause, the employer can recover training costs from the employee or offset them against the employee’s salary. For example, if the employee does not complete the study or training or leaves shortly after completing it.
According to the new legislation, a tuition fee clause is null and void when it concerns training the employer is required to provide for the performance of the job for which the employee was hired. From 1 August 2022, this will apply to existing clauses concerning the fees for mandatory training. It does not matter whether the clause was agreed upon before that date. It also does not matter why the employer wants to claim back or offset the tuition fees. Thus the clause is also null and void when the employee does not complete the study or training or terminates the employment contract shortly after completing it.
As regards non-mandatory training, you can still agree on a tuition fee clause or maintain an existing tuition fee clause. However, this has to meet the conditions developed in case law, such as the phased reimbursement of tuition fees.
The new regulation also implies that the mandatory training – if possible – takes place during working hours, i.e. the time when work has to be performed. Mandatory training that takes place outside working hours counts as working time, for which the employee must be compensated. The employer does have to pay at least minimum wages for these extra hours or can, if agreed in a collective labour agreement and with the employee, compensate these hours in paid time off.
Do you have any questions about the new regulation for the training of employees? Do you want us to check existing training clauses? Or do you have any other employment issues you would like to submit to a lawyer? Please contact us:
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