Scope of the employer’s obligation to provide training

08.06.2016

As an entrepreneur, the introduction of the Work and Security Act (WWZ) will have a variety of consequences for you. A great deal of attention has already been paid to most of them, and you probably have a fair idea of the most important measures likely to affect you. Up until now, however, not much attention has been given to the obligation of employers to make training available to their personnel. Below is an overview of the most important points which should be considered.

To begin with, the law contains an obligation for employers to enable their employees to follow training ‘necessary for the performance of their job and for the continuation of the employment contract were the employee's job to disappear or if the employee were no longer able to perform that job’. This is a quite generally formulated obligation which does not automatically entail that the employer must bear all the training costs. Although employers may be required to invest in the knowledge and job-related skills of their employees, it is possible to insert a study expenses clause that obliges the employee to repay at least a part of their study expenses. If the employee gives notice of termination, a major part of this investment can then be claimed back. 

The meaning of the obligation to provide training is mainly expressed in situations in which there is a wish to terminate the employment. If the grounds for dismissal are ‘unsatisfactory performance on the part of the employee’, the employer must demonstrate that the employee has been sufficiently enabled to improve their performance and that the employee’s unsuitability is not the result of insufficient efforts to provide training. Starting an improvement programme with clear written agreements about the points in need of improvement is very important, and it may be a good idea to engage the services of an external improvement coach. A coach can provide expert and independent advice on matters such as the recommended training and coaching. If the grounds for dismissal are that ‘the job has become redundant’, training is important within the framework of efforts to find a new position that is incumbent upon employers. If further training might make an employee whose job has become redundant suitable for another job , the employer is expected to offer such training. If the court finds that no or insufficient training has been provided, the request for termination will almost certainly be rejected.

If it is clear that, despite sufficient efforts in the area of training, there are no possibilities to place the employee elsewhere and that the employment contract may therefore be terminated, the employer must pay a transition payment from which training expenses can be deducted. These are costs for avoiding or reducing unemployment (transition costs) and costs that enhance the employee's employability outside the organization (employability costs). Examples of this are outplacement or non-work-related language courses. The transition payment may only be settled in this way if both the employer and employee agree to this. It is therefore wise to make clear agreements with your employees on this matter in advance.

We recommend taking the new obligation to provide training seriously, and ensuring that all agreements concerning training are set out clearly in writing. This will enable you to invest in the quality of your employees and also puts you in a stronger legal position if an employee's performance is substandard.

Source June 2016, Rijnmond Business.

If you have any questions about this article, please contact Michiel Leenhouts.