7 September 2022

Study costs and outside activities: practical tips

By Koen Vermeulen

From 1 August 2022 employers must comply with new rules on study costs and outside activities.

These new rules are laid down in the Act Implementing the EU Directive on Transparent and Predictable Employment Conditions (Wet implementatie EU-richtlijn transparante en voorspelbare arbeidsvoorwaarden). In this blog I will give you an update on what this means for employers.

Study costs clause not permitted

From 1 August 2022 onwards, the employer must provide education and training that are necessary for the employee to be able to continue to perform the job free of charge. This is now laid down by law. This could be training that an employee needs to be able to work with a computer system newly introduced by the employer or training in the context of an improvement plan in the case of inadequate performance. A study costs clause may not be agreed upon for this type of training.

Is it a training necessary in order to perform the job (without which an employee cannot or may not do the job), is it obligatory by law or under a collective labour agreement, or does it relate to employability? Then the training costs are payable by the employer. This is in line with the legislative process of the EU Directive on Transparent and Predictable Employment Conditions. The employer must offer such training free of charge, including training costs, travel expenses, study materials, examination fees, and the employee must be able to attend during working hours without loss of pay.

Study costs clause permitted

After 1 August 2022, study cost clauses in connection with non-compulsory training are still permitted under the same conditions as at present. Such as a sliding scale for the repayment of study costs and an obligation for the employee to repay the costs only if the employment contract ends at his/her initiative. Existing study costs clauses relating to non-compulsory training continue to be valid after 1 August.

Prohibition on outside activities

From 1 August 2022, outside activities are permitted. There is one exception to this rule. Outside activities may still be prohibited if the employer has an ‘objective reason’. This still leaves the employer with quite a lot of discretionary power. The employer must communicate this reason to the employee in the employment contract or at the time when the employee asks if he/she can perform outside activities. Has an employee not requested permission and did the employer find that an employee is ‘secretly’ working elsewhere? Then the employer can also prohibit that work elsewhere in writing and provide an ‘objective reason’.

Objective reason for prohibiting outside activities

An objective reason must be something more than just a ‘compelling business interest’ for the employer. When prohibiting outside activities, the employer must weigh up its own compelling interest against the employee’s interest in being able to work elsewhere. Some examples of objective reasons for prohibiting outside activities are:

  • The health and safety of the employee may be at stake if he/she works many hours elsewhere in addition to his/her regular job;
  • Cases where the protection of the confidentiality of company information can be compromised if an employee also works elsewhere: such as competition-sensitive information that is then in danger of being disseminated or information that falls under the Trade Secrets Act (Wet bescherming bedrijfsgeheimen);
  • The avoidance of conflicts of interest.

Examples of outside activities clauses

We are more than happy to provide an example of an outside activity clause in the new style. This does not yet include the objective reason. As said, this is not necessary and by not doing so immediately this gives you as an employer more scope to provide the objective reason for the prohibition at a later date.

Outside activities clause

  1. The employee must not perform any paid or unpaid work for others during the term of the employment contract.
  2. The employee may ask the employer in writing in advance for permission to be exempted from this prohibition. This permission can only be granted in writing. The employer may refuse the permission requested. For this, it needs an objective justification that it can communicate to the employee in writing.

A penalty clause may be attached to this article. This could include a threat to terminate the employment contract, or a penalty for breaching this prohibition on outside activities.

It is not necessary to modify your existing outside activity clause immediately. When refusing an employee’s request for permission to carry out outside activities, it is sufficient to state the objective reason and the justification for this (preferably in writing).

Advice on study costs and outside activities clause

We have drafted a new outside activities clause. Take advantage of this! Will you be concluding or extending new employment contracts or offering training and studies in the near future? Then make sure that the conditions and clauses comply with the new law. Do you have questions about what is compulsory training and what is not?? Would you like to know when you can agree on a study costs clause and when you cannot? If you have any other questions about the above, please do not hesitate to contact us.

Koen Vermeulen

Koen Vermeulen

Lawyer / associate partner

Koen Vermeulen is your sparring partner for all questions on employment law, employee participation and pensions.

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