To have a training costs clause set aside in a settlement agreement in Eindhoven

Have you been offered a settlement agreement (vaststellingsovereenkomst) and does your employment contract also contain a training costs clause? If so, you may be facing a substantial repayment to your employer. Fortunately, this is far from always justified, and the settlement agreement negotiation is precisely an opportunity to get this clause off the table. In this article you can read when a training costs clause is valid, when it is not, and how to deal with it when employment is terminated by mutual consent.

What is a training costs clause and when does it apply?

A training costs clause is an arrangement in your employment contract or a separate training agreement, under which you reimburse your employer for training costs paid on your behalf if you leave employment within a certain period. The employer invests in your knowledge and expects you to put that knowledge to use within the organisation for a number of years.

Such a clause is not laid down in a separate statutory provision, but the Supreme Court ruled as long ago as 1983 (the Muller/Van Opzeeland judgment) on the requirements it must meet in order to be valid. Since then, a clear framework has also emerged in case law.

To be legally valid, a training costs clause must meet at least three conditions:

• It must be recorded in writing how long the employer is deemed to benefit from the training (the so-called benefit period).
• The repayment obligation must decrease on a sliding scale the longer you remain employed after completing the training.
• The financial consequences must have been clearly explained to you in advance; you must not be faced with any surprises.

Furthermore, the clause must have been agreed in writing before the training commenced. If you never signed anything before the training started, your employer cannot hold you to it after the fact.

When is a training costs clause void?

Since 1 August 2022, additional statutory restrictions have applied following the introduction of the Act on Transparent and Predictable Employment Conditions. This Act has extended Article 7:611a of the Dutch Civil Code. The key point: if the training is mandatory under statute or a collective labour agreement in order to perform your role properly, the employer must provide that training free of charge. A study costs clause relating to such mandatory training is then void by operation of law.

In short: if your training was necessary for the performance of your current role and that obligation follows from the law or an applicable collective labour agreement (cao), you do not have to repay those costs – even if a clause to that effect appears in your contract.

Please note: there is a difference between training that is required for your role and training you undertake for career progression or personal development. If you are pursuing a course on your own initiative or for a different role in the future, a training costs clause remains possible in principle. noodzakelijk is voor je functie en een opleiding die je volgt voor doorgroei of persoonlijke ontwikkeling. Volg je een studie op eigen initiatief of voor een andere functie in de toekomst, dan blijft een studiekostenbeding in beginsel mogelijk.

The study costs clause in a settlement agreement

At a settlement agreement the study costs clause comes into play in a particular way. Your employer is taking the initiative for the dismissal. That very fact works in your favour during negotiations.

The Supreme Court has ruled that an employer may act contrary to the principles of reasonableness and fairness if they hold you to a repayment arrangement while they themselves took the initiative to terminate the employment. This makes the study costs clause a serious point of negotiation in many cases involving a settlement agreement where your employer is the driving force behind the dismissal.

Set-off against the final settlement

Be alert to set-off as well. Employers sometimes quietly set off study costs against the final settlement payment. This is permissible in principle, but only to the extent that you retain at least the statutory minimum wage. Your employer may never withhold your salary in full on account of study costs. Make sure, therefore, that the settlement agreement explicitly sets out what will happen with the study costs clause, so that any surprises at the final settlement stage are avoided.

How to negotiate the study costs clause away

The good news is that in a settlement agreement you have every opportunity to negotiate over the study costs clause. Employees often focus solely on the severance payment when assessing a settlement agreement, but a high payment is of little value if you are subsequently left with a substantial study debt to repay. Always include the clause explicitly in the negotiation process.

Practical tips for your approach:

• Check whether the study costs clause was agreed in writing and before the start of the course; if not, the clause may already be invalid.
• Establish whether the course was compulsory for your role under statute or a collective labour agreement (cao); if so, the clause may be void pursuant to Article 7:611a of the Dutch Civil Code.
• Consider whether the clause contains a sliding scale and whether the repayment period has already (partly) expired.
• Make it an explicit point in the negotiation that the initiative for the dismissal lay with the employer; this weakens their position when seeking to enforce the clause.
• Stipulating in the settlement agreement that the study costs are waived in full or in part is open to discussion in many cases, particularly where the employer has an interest in a swift resolution.
• Have the settlement agreement reviewed by an employment lawyer before you sign; that way you can be certain there are no hidden set-off provisions in it.

Fixed-term contract and the study costs clause

Are you employed on a fixed-term contract and has your employer decided not to renew it? In that case, recovering study costs is particularly vulnerable. Courts take into account whether your contract was for a fixed or indefinite term. In the case of a fixed-term employment contract, your employer is required to inform you more explicitly of the financial risks of the study costs clause. If the employer fails to do so, the clause may be set aside.

Why Employment Lawyer Eindhoven

A study costs clause in a settlement agreement is a frequently encountered stumbling block for employees in the Eindhoven and Brabant region. The landscape is complex: when is such a clause valid, when is it void, and what is open to negotiation? Arbeidsjurist Eindhoven can help you answer those questions in concrete terms. We assess your situation, test the clause against current legislation and regulations, and support you in negotiations with your employer. Contact us without obligation for an initial consultation; you will quickly know where you stand.

Frequently asked questions

Do I always have to repay study costs in a settlement agreement?

No, that is not automatically the case. If your employer took the initiative to proceed with the dismissal, it may be contrary to reasonableness and fairness to hold you to the repayment obligation. Moreover, the negotiation of the settlement agreement provides an opportunity to agree that the study costs clause will lapse or that the costs will be waived.

When is a study costs clause void under the 2022 legislation?

Since 1 August 2022, Article 7:611a paragraph 4 of the Dutch Civil Code provides that a study costs clause is void if the training was compulsory under statute or a collective labour agreement in order for you to perform your role properly. The employer must offer such compulsory training free of charge and may not recover the costs from you.

What is a sliding scale in a study costs clause?

A sliding scale means that the repayment obligation gradually decreases the longer you remain employed after completing the training. For example: in the first year you repay 100%, in the second year 66%, and in the third year 33%. If such a scale is absent, the clause may be invalid.

May my employer set off study costs against my final settlement payment in a settlement agreement?

Set-off is permissible in principle, but only if, after the set-off, you still receive at least the statutory minimum wage. Your employer may not withhold your salary in full. Always ensure that the settlement agreement explicitly records what will happen with the study costs clause and the final settlement payment.

What if I never signed the study costs clause before the training began?

A study costs clause must be agreed in writing before the training has commenced. If you signed nothing prior to the start of the training, the clause may not be legally valid and you can dispute the repayment obligation. Your employer cannot compel you to sign something after the fact.

We are happy to think along with you. For advice tailored to your situation, we would be glad to talk. No rights can be derived from the content of this page and it may contain inaccuracies.