Training agreements: Then they are ineffective

Training agreements are common practice in the world of work. However, care must be taken when drafting refund clauses.

By guest author Volker Görzel

Repayment obligations are generally permitted, but this depends on the clause’s application and precise wording. – © jd-photodesign –

Employers are usually willing to help training of their employees to invest. However, this should also pay off, so that the employee must be tied to the company in the long term. These are normal refund clauses agreed in the event that the employee leaves the company within a certain period. You have to be careful here though not all refund clauses are effective.

BAG issues ground-breaking statement on grounds for invalidity of refund clauses

The effectiveness of bailout clauses in a training agreement has for some time been the subject of a large number of judgments in legal practice. The Federal Labor Court (BAG) has now again decided: Repayment obligations are generally permitted but the devil is in the details: It depends on the usage and exact wording of the clause.

One is therefore of central importance legal drafting of the clause.

The 3 main reasons for invalid clauses

In its latest decision, the Federal Labor Court pointed out three grounds of invalidity which should be avoided.

  1. requirement for one Terms and conditions Content control according to §§305ff BGB – Surprise clause and requirement for transparency
    Repayment agreements are usually pre-formulated agreements that are used for a wide range of contracts and thus represent Terms and Conditions (GTC) dar. You must have one General terms and conditions control withstand. It is particularly important to ensure that the clause is not surprising or ambiguous for the employee in accordance with §305c BGB and that the clause requirements for transparency according to §307 I 2 BGB.
  2. No unfair discrimination: the relationship between seniority and further training
    One refund clause is also ineffective if they are the employee inappropriate disadvantaged. Such discrimination exists, among other things, if it is agreed in the clause duration of the bond out of proportion to the education. In particular, the level of further education costs, the duration of the further education and the benefits the employee obtains through the further education (e.g. improvement of own chances on the labor market) must be put into relation when weighing up the costs. . As a point of reference, case law has established the following standard values:
    – Training duration up to one month: commitment duration up to 6 months
    – Duration of training up to two months: commitment duration up to 12 months
    – Training period of three to four months: commitment period of up to 24 months
    – Training period six to twelve months: commitment period up to 36 months
    – Duration of further education for more than twelve months: maximum commitment period of 60 months
    (another applies if the employee resigns before the end of the training)
  3. Lack of “exceptions”
    Finally, another reason for the invalidity of refund clauses may be that the clause due to lack of sufficient “exceptions” unreasonable disadvantages for the employee. A premature termination of the employment relationship, even during the commitment period, cannot in itself justify a repayment obligation.
    On the other hand, it must be differentiated according to whose sphere termination falls, and corresponding “exceptions” must be defined. Inability to employ the employee according to his abilities or a termination by the employer for operational reasons represent, for example, “exceptions” from the repayment obligation.

In the judgment of the Federal Labor Court of 1 March 2022, the catalog of “exceptions” has now been expanded to include a constellation: a unnecessary disadvantage also applies if the employment relationship is terminated by the employee before the end of the commitment period due to a irresponsible obstruction of performance must be terminated – the reason for the termination cannot therefore be attributed to either the employer’s or the employee’s sphere.

Requirements for the effectiveness of a repayment obligation

Conversely, the following points must be observed in order to integrate a legally secure repayment clause into the employment contract:

  1. The employer’s legitimate interest
    The employer must have a so-called “legitimate interest” in the repayment obligation. being legitimate interest is to use the qualification acquired by the employee for as long as possible. The employer only wants to spend training and further training costs on an ongoing basis for those employees who are willing to make the acquired qualifications available to them for a certain period.
  2. Appropriate compensation through financial performance
    From the employee’s side, the commitment period with repayment obligation in the event of early departure must be compensated appropriately in the form of a financial performance to come face to face with It is more likely that the employee is expected to share the costs, the greater the benefit associated with the training or further training for him. This (monetary) advantage may lie in the improvement of one’s own opportunities on the labor market. Most important here are the knowledge and skills that the employee can also use outside the company and use for professional advancement. Such compensation is excluded from the outset, if it is pure internal further training, refreshing of existing knowledge or adaptation to operating conditions.
  3. reasonableness
    Finally, the obligation to repay must be given to the employee in good faith reasonable be. At this point, an overall assessment of all circumstances in the individual case must be carried out using the proportionality standard. As already mentioned, consideration must be given to the duration of the commitment, the extent of the further training and the amount to be repaid and the processing thereof.

However, the case law does not stop at these criteria: it also requires one as part of the content control differentiation in the case of termination, to which there is an obligation to repay, if the employee resigns within the commitment period.

Both employers and employees can therefore only be recommended in this difficult legal situation timely legal support to assert something.

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