News

1. Specification of being a good employer (article 7:611a Dutch Civil Code, DCC)

First of all, a closer specification of being a good employer is included in the act: the employer is obliged to enable the employee to take part in training that:
• is necessary for the execution of his function, and
• insofar as it can reasonably be demanded of him, is necessary for the continuation of the employment contract whenever the employee´s position has been abolished or the employee is no longer able to fulfil it.
The kind of training intended is training focussing on one´s own – or another position within the organisation itself. The obligation does not go as far as obliging the employer to provide training directed towards obtaining employment elsewhere.

2. Grounds for dismissal (article 7:669 sub 1 and sub 2 DCC

Training also plays a major role in dismissal on the grounds of an employee’s dysfunctioning. As it is, termination is only possible when the employer has reasonable grounds to do so. When the employee´s unsuitability for a position is the result of inadequate attention on the part of the employer to providing training facilities for the employee or to the employee´s working conditions, there are in principle no reasonable grounds for terminating the contract. In addition, reallocation within a reasonable time to another position, with or without training, has to be impossible or not on the cards (as in cases of seriously objectionable conduct of the employee).
So, when the employee has been given insufficient opportunities to acquire the necessary skills, this can mean that the contract cannot be terminated.

3. Transition allowance (article 673 sub 6 DCC and general administrative order)

When the employee organises training sessions for employees, these expenses can in some cases be deducted from the transition allowance. It concerns the following expenses:
• transition expenses: expenses incurred as a result of measures concerning dismissal that are directed at preventing or shortening unemployment (retraining, outplacement, longer notice period). This also includes job-to-job assistance.
• employability expenses: expenses incurred during the employment and relating to broader employability outside the employer´s organisation (a non-work-related course).

The requirements for the deduction of these expenses are among others:
• Provide a specification and a written notification to the employee
• The employee has to agree in writing, unless agreements have been made with labour unions and/or works council.
• The expenses must be reasonable given the objective.
• The expenses cannot be reclaimed from third parties or the employee. For example, think of a study costs clause with the employee,
• Expenses should have been incurred within 5 years prior to the termination of the employment contract.

“To do”

We recommend employers to review their present training policies and if necessary refine them. In doing so, do not forget the works council. After all, the works council does have a right of consent whenever a staff training matter has to be decided on. Training can, however, also be a part of a compensation – or job evaluation system or a procedure in the area of recruitment -, dismissal -, or promotion policies. In principle, these are subjects in which the works council has ratification authority (in addition to initiatives the works council can submit).