New legislation on reclaiming training costs and 'ancillary activities' clauses: are your em

Employers will need to check their employment agreements as EU Directive containing various employment law obligations is to be implemented.

On 19 April 2022, the Dutch House of Representatives passed the Act Implementing the EU Directive on transparent and predictable employment conditions (Wet implementatie EU-richtlijn transparante en voorspelbare arbeidsvoorwaarden) (the Implementation Act). 

The Implementation Act imposes additional obligations and affects various terms and conditions of employment, including those relating to training costs and "ancillary activities" clauses in employment agreements. Many of these clauses may no longer be compliant. Employers should take action to review their agreements.

Training costs clauses

A training costs clause can, in principle, no longer be agreed for training costs incurred for the necessary performance of the job, if prescribed by law. For mandatory training programmes, the text of the Implementation Act states that the education or training concerned must:

1. be offered to the employee free of charge (this also applies to costs of any books or travel expenses);
2. be regarded as working time; and
3. take place during working hours, if possible. 

For costs that do not fall under the scope of the Implementation Act, a training costs clause can still be agreed upon, taking into account the conditions set out in Supreme Court case law. This means, among other things, that the training costs clause must specify the period during which the employer is expected to benefit from the knowledge and skills acquired through the training (the benefit period), and the repayment obligation must be reduced proportionally during that benefit period, so that the repayment obligation is proportional to the duration of the employment after the end of the training course (a sliding scale). 

Nullity of ancillary activities clauses

An ancillary activities clause restricts the employee from performing work outside the employment agreement. Currently, ancillary activities clauses are not regulated by Dutch law. However, as a result of the Implementation Act, a clause which, without objective justification, restricts an employee from performing work for others outside working hours will be null and void. 

Osborne Clarke comment

It is now up to the Senate to adopt the Implementation Act. The intention is for the Implementation Act to enter into force with immediate effect on 1 August 2022. It is therefore important for employers to check now whether their employment agreements need to be amended. 

We are happy to advise you further on whether or not clauses on education/training costs or ancillary activities applied within your company are still possible under the Implementation Act.