Employee has to Repay the Costs for Occupational Health Training to the Employer

Under the agreement between the parties, an occupational health and safety service that had paid the costs of the occupational health training for an employee was entitled to reclaim these costs from the employee when the employee left the employment, despite the fact that the training concerned was required for the position of the employee.

In 2020, an occupational health and safety service employed a medical doctor.
The employment contract stipulated that the employee should follow the training to become a registered occupational physician, required for the employee’s position to be performed.
The employer would bear the costs for the training (EUR 47,000). It was agreed that the employee would repay part of the training costs to the employer in case of termination of the employment within four years from the end of the training. The amount to be reimbursed would be reduced for each year that had passed from the end of the training. In that case, the employee would not only have to repay the training costs, but also the employer’s costs for supervision and peer-to-peer coaching and the costs of the eight working hours per week he was allowed to spend to this training.
When the employee terminated the employment contract as of 1 February 2022 in order to take up employment with another occupational health and safety service, a dispute arose about the employee's repayment obligation. The dispute was submitted to the Sub-district Court. The occupational health and safety service claimed reimbursement of an amount of nearly EUR 77,000.
The Sub-district Court rejected the employee’s most far-reaching defence, whereby the study costs clause would be null and void due to the legal provision that came into force on 1 August 2022, implying that training required for the performance of the job should be offered by the employer free of charge.
The Sub-district Court pointed out that the legislative history of this statutory provision shows that compulsory training should not be taken to mean a training that an employee has to undergo in order to obtain, maintain or renew a professional qualification as referred to in the European Professional Qualification Directive. It is the training course “Labour and Health, Occupational Medicine” that is mentioned as such in the appendix to that directive.

The Sub-district Court decided that the study costs clause was also in accordance with the case law of the Supreme Court that relates to the repayment of wages. According to this case law,
(1) a period should be established during which the employer is deemed to benefit from the knowledge acquired by the employee through the study,
(2) it should be stipulated that the employee has a repayment obligation during this period and
(3) the repayment obligation should be reduced in proportion to the period mentioned above.

The Sub-district Court decided, however, that the costs for supervision and peer-to-peer coaching by the employer had not timely been clear to the employee. They were reduced from EUR 40,000 to EUR 10,000.

Finally, the Sub-district Court ruled that the reclaim was not contrary to good employment practices, nor unacceptable according to standards of reasonableness and fairness. Another factor that plaid a role in this was that, as an occupational physician, the employee had good job and salary prospects, that the employer was willing to re-employ the employee or to make a payment arrangement with the employee and that the new employer might be willing to account for part of the costs.
In the end, the employee had to repay over EUR 45,000.

The judgment of the Sub-district Court is particularly important in connection with what it says about the new statutory provision, that the costs for training courses required for the performance of the job should be borne by the employer.
First of all, it is noteworthy, that the Sub-district Court did not rule that this legislation is not applicable, because the termination of the employment contract -and thus the repayment obligation- on 1 February 2022 had taken place prior to the entry into force of the legal provision on 1 August 2022.
But also its decision that in this case the training should be regarded as a compulsory training in order to obtain, maintain or renew a professional qualification within the meaning of the European Professional Qualifications Directive is of importance, because this exception, though specified in the legislative history, is not apparent from the law.
In order to qualify for this exception, the program needs to be listed in an appendix to the European Directive or in its Dutch version in the Regulations Establishing the List of Regulated Professions.