An employer was allowed to enter into a study costs agreement with an employee, obliging the employee to reimburse the study costs under certain conditions, as it did not concern a training that was needed for the employee to fulfil his duties, but a training that was necessary to obtain a position.
An Audiology Service had signed a two-year employment contract with an employee.
In this period, the employee would be trained to become an audiologist. He would attend school one day a week and work as an audiologist-in-training for the other four days. The costs of the training would be paid by the Audiology Service, but in the Study Agreement it was agreed that the employee should repay the costs of the training in full or in part in case of resignment within a certain period of time after completion of the study.
When the employee had successfully completed the training, an employment contract for an indefinite period was entered into. It included a non-competition clause, prohibiting the employee from working at another audiology service within a 25 kilometre radius of the premises of the Audiology Service where the employee actually worked, after termination of the employment contract. A non-solicitation clause was also agreed upon.
Six months later, the employee informed his employer that he wanted to start working at another audiology centre, 20 kilometres away. He asked him to adjust the non-competition clause in such a way that this would make it possible for him to accept the position, but the employer refused. Then, the employee terminated the employment contract, be it without entering into the employment with the other employer yet.
Then, the employer claimed reimbursement of an amount of nearly EUR 10,000 of study costs.
Subsequently, the employee requested the Sub-district Court in summary proceedings to issue a decision by way of a provisional ruling to suspend both the non-competition clause and the study costs clause.
The employee believed that the Study Costs Clause was void as conflicting with the law, because it concerned training that was necessary to fulfil the position of an audiologist.
The legal provision the employee relied upon was based on a European Directive. The explanation to this Directive shows that the training obligation does not apply to professional training or to courses that the employee is obliged to follow to obtain, maintain or renew a professional qualification, unless the employer is obliged to offer such training. The explanatory memorandum to the law by which this European Directive was incorporated into the Dutch law explains that this exception to the training obligation concerns the European Professional Qualifications Directive, the so-called “regulated professions”. The notes to the Dutch law refer to a list in which these regulated professions have been set out.
Since the profession of audiologist is not included in this list, the employee believed that the exception to the training obligation did not apply to him.
The Sub-district Court, however, had a different view on it.
The list of regulated professions was drawn up for the implementation of the Professional Qualifications Directive. This Directive allows the Member States of the European Union, in the interests of public health and safety, to make an exception to the free movement of goods and services within the European Union by requiring a certain professional qualification for the provision of certain services. The list of regulated professions indicates what exceptions the Netherlands have made in this regard.
The exception to the above employer's training obligation did refer to this list of regulated professions, but was not restricted to it. The purpose of the Professional Qualifications Directive is very different from the purpose of the employer's training obligation.
The important issue under the training obligation above is that the employee obtained a professional qualification as an audiologist through his training, which is a precondition to pursue the occupation of audiologist. And this is what constituted an exception to the employer's training obligation. Therefore the study costs clause was legally valid.
The employer had sufficiently informed the employee about the financial consequences of the reimbursement obligation and the study costs agreement contained a sliding scale in which the longer the employee has worked for the employer after completion of the training, the less reimbursement of the debt would be required. For these reasons, the Sub-district Court considered it unlikely that the Court with jurisdiction in the substance would annul the study costs clause. Therefore there was no reason to make a provisional ruling in summary proceedings.
The Sub-district Court did see a reason, however, to suspend the non-competition clause. The Sub-district Court did not find sufficiently compelling interest to restrict the employee's freedom of choice of employment. The non-solicitation clause sufficiently met the employer’s interests.
Since the implementation of the law, introducing the European Directive for transparent and predictable employment conditions into the Dutch legislation, any training an employees needs in order to fulfil his/her duties shall be borne by the employer and shall take place during working hours. Thus, a study costs agreement which provides for a reimbursement obligation shall not be permitted.
Things are different, however, once the training is not needed for the duties that the employee fulfils, but for position he or she wants to have in the future.