During the training of an employee, it may happen that the employer signs an endorsement or an agreement of "training-deduction".
But what are the conditions?
The forfeit-training clause is a clause by which the employer undertakes to finance training for an employee provided that:
- that he remains at his service for a given period (typically 1 to 4 years),
- or that he reimburses, totally or partially, this training if the first condition is not fulfilled.
It allows the employer to promote the qualification of his employees while encouraging them to stay with him as long as possible.
To be valid, it is necessary that this clause meets all the following conditions:
- it must not aim at training as part of a professionalisation contract (L6325-15 of the Labor Code);
- on the amount to be refunded:
- this amount must constitute a real consideration for a financial commitment from the employer more its legal, contractual or contractual obligations (Cass. soc. No. 90-45374 of January 5, 1995),
- this amount must be proportionate to the costs actually incurred by the employer (Cass. soc. n ° 00-42909 of May 21st, 2002) and must not be any lump sum and / or disproportionate amount;
- it must not deprive the employee of his right to resign;
- it must be the subject of a special agreement, separate from the employment contract (Cass. soc n ° 01-43651 of February 4, 2004):
- concluded before the beginning of the training,
- specifying the date, nature, duration of the training and its real cost to the employer,
- specifying the amount and terms of reimbursement to be paid by the employee.
- it must not be drafted as part of a professionalisation contract (L6325-15 of the Labor Code);
- it must enable employees to know precisely the scope of their commitment (the date of the training, its nature, its duration, its real cost for the company as well as the amount and the terms of the reimbursement made payable by the employee) (C. Cass. Soc. February 9, 2010, No. 08-44477).
The purpose of the deduction-training clause is to apply:
- upon the resignation of an employee who signed it;
- upon termination of the probationary period at the initiative of the employee (Cass. soc. No. 99-42457 of June 20, 2001).
During a dismissal (without serious or serious fault), there is no need to apply this clause since it is the employer who takes the initiative in the termination (C. Cass. soc. May 10, 2012, No. 11-10571), including in case of taking action by the employee (C. Cass. soc. January 11, 2012, No. 10-15481).
On the other hand, if the dismissal is made for serious misconduct (and a fortiori, for gross negligence), the deduction clause will apply (Cass. soc n ° 04-42660 of December 14, 2005)
Taking notice of the termination of the employment contract
The withdrawal clause does not apply if the employee acknowledges the separation and that this separation is recognized as being attributable to the employer (Cass. soc. No. 87-43787 of July 4, 1990).
Amount to repay
As noted above, the amount to be repaid must:
- constitute a real consideration for a financial commitment from the employer more its legal, contractual or contractual obligations (Cass. soc. No. 90-45374 of January 5, 1995): in other words, the employer cannot request reimbursement of compulsory expenses,
- be proportionate to the costs actually incurred by the employer (Cass. soc. n ° 00-42909 of May 21st, 2002);
Thus, must especially be excluded from the amount to be refunded:
- the scholarships or grants received by the company or the employee which made it possible to finance the training (Cass. soc. No. 94-43195 of November 19, 1995);
- the amount of participation in the financing of the training fixed by a legal or conventional obligation (if applicable to the case);
- salary (C. Cass. Company, October 23, 2013, No. 11-16032) because the maintenance of the salary is explicitly mentioned by L6321-2 of the Labor Code ;
- VAT on these formations if it has been recovered by the company.