A recent decision by the Court of Appeal of Saint-Denis de la Réunion is an opportunity to re-specify the rules of validity of a training forfeiture clause.
In the case decided by the Court of Appeal of Saint Denis de La Réunion on September 15, 2022, an employer and an employee have signed an amendment to the CDI whereby the first accepts that the second follows training during her working time in order to enable her to perfect her knowledge and improve her skills in the position she occupies ( 630 hours of training over 12 months). In return, the employee undertakes to remain in her service for a period of 3 years, in the event of resignation before the end of this period, the employee undertakes to reimburse several sums.
The employee resigns and the employer makes a deduction from her last salary corresponding to the following expenses: educational cost, remuneration received during the training period as well as “miscellaneous expenses” (supplies, documentation). The employee challenges the validity of the forfeiture clause.
At the visa of thearticle 1103 of the Civil Codethe trial judges recall that ” if conventions take the place of law for those who made them, they must still be legally formed“. They then go over the arguments to verify the validity of the amendment to the employment contract containing the forfeiture-training clause.
At the request of reimbursement of salaries paid during the training periodthe judges recall that the employment contract having continued during the time of the training from which the employee benefited, “ the salaries paid to him are not subject to repetition“. As soon as the training is carried out during working hours, the training forfeiture clause which provides that in the event of premature departure, the employee must reimburse the remuneration he received during his training, is void (CA Bourges, December 22, 2017, n°16/01460 – Cas. Soc. October 5, 2016, n° 15-17.127 – Cas. Soc. October 23, 2013, 11-16.032 – Cass. Soc. 4 juill. 2001, no 99-43.520).
At the request of reimbursement of “miscellaneous expenses”, the judges recall that it is the employer’s responsibility to provide proof of the costs that he has actually incurred. However, the endorsement signed by the employee provided for reimbursement of these sums on the basis of a fixed assessment. The withdrawal-training clause concluded on the basis of a lump sum assessment and not the actual cost of training for the employer is null (Cass. Soc. Nov. 6 2013, noo 11-12.869). The withdrawal clause is in fact the ” counterpart of a commitment made by the employer to provide training entailing real costs ” ( Cass. Soc., 5 juin 2002, n°00-44.327 – Cas. Soc., July 17, 1991, n°88-40.201) .
There is therefore only one sum left that can possibly be claimed: the pedagogical cost of the training action. However, this sum was fully paid for by the joint collection body on which the employer depends. In the absence of counterpart, the clause incurs the nullity. The conclusion is self-evident: failing to demonstrate that he actually incurred the costs for the training followed by his employee, the sum provided for by the endorsement to be borne by the latter in the event of resignation does not correspond to the costs actually incurred by the employer, so that the disputed clause is unlawful, that it must be canceled and that the deduction made from the sums to be returned to the employee by virtue of the balance of any account was unjustified.
Other conditions are required for the training forfeiture clause to be valid.
She must ” be the subject of a special agreement between the parties, concluded before the training, specifying the date, the nature, the duration of the training and its real cost for the employer, as well as the amount and the methods of reimbursement to the employee’s responsibility » (Cass. Soc., Feb. 9 2010, n° 08-44,477 – Cass. Soc., 4 Feb. 2004, n° 01-43,651). The clause must not have the effect of depriving the employee of the right to resign (Cass. Soc., 5 juin 2002, n°00-44.327 – Cas. Soc., July 17, 1991, n°88-40.201) which may be the case if the length of service is disproportionate or excessive in relation to the duration of the training and its cost to the employer (Cas. Soc. October 6, 2010, n°07-42.023 – Cass. Soc 18 juin 1981, n°78-40.939) and ” the amount of the compensation for withdrawal is proportionate to the training costs incurred » (Cass. Soc. May 21, 2002, 00-42.909).
Beyond the question of its validity, rules also govern the implementation of a training forfeiture clause.
Thus, even if the clause is valid, it cannot be applied when the training does not comply with the employer’s commitments (Cass. Soc. 28 mars 1995, n° 91-45.088 – training of ten days instead of a month and a half) or is interrupted at the initiative of the employer (Cass. Soc. 15 juin 2000 n° 98-42.873). The employee is entitled to claim damages with regard to the loss he has suffered as a result of the incompleteness of the training, his career loss and his subsequent loss of income (Cass. Soc. 15 juin 2000 n° 98-42.873).
Case law has also specified that the forfeiture clause only comes into play in the event of termination attributable to the employee (resignation, act producing the effects of a resignation, retirement). The forfeiture-training clause stipulated in the employment contract is not applicable in the event of termination at the initiative of the employer, even in the event of dismissal for gross negligence of the employee (Cass. Soc. May 10, 2012, n° 11-10.571).
The clause cannot be implemented in the event of termination by mutual agreement, in particular in the event of conventional termination. When taking action ” of the break-up of the employee [produit] the effects of a dismissal without real and serious cause (…)” it follows that “the employee [n’a] not failed on his part in his commitment to remain for a certain period of time in the service of his employer in return for the training which was provided to him » (Cass. Soc., 11 Jan. 2012, n° 10-1 5.481).
The judges appreciate in concreto the condition of imputability of the rupture. They thus decided that when the employment contract is terminated during the trial period by the employer ” following the employee’s refusal to sign the employment contract“, the clause is enforceable against the employee (Cass. Soc. 20 juin 2001, no 99-42.457). It naturally follows that when the resignation of the employee follows serious breaches by the employer, the clause is not opposable to the employee (non-payment of wages – Cas. Soc. July 4, 1990, 87-43.787).
The legislator prohibits the use of the forfeiture clause in professionalization contracts (article L6325-15 of the Labor Code). Although such a prohibition does not formally exist in the Labor Code for the apprenticeship contract, such a clause would empty the contract of its substance. Indeed, the employer undertakes to provide the apprentice with full vocational training » (article L6221-1 of the Labor Code). « The employer who does not meet his training obligation diverts the apprenticeship contract from its purpose » (Cass. Soc. 12 February 2013, 11-27,525). The same goes for subsidized contracts such as the employment support contract, which includes a training obligation at the employer’s expense (article L5134-20 of the Labor Code). According to the judges, the employer’s obligation to ensure, within the framework of the employment support contract, training, vocational guidance and validation of skills intended to reintegrate the employee on a long-term basis constitutes one of the conditions of existence of this contract, failing which it must be reclassified as a permanent contract » (Cas. Soc. December 15, 2021, 19-14.018).
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To go further (subscriber access to Practical sheets on training law): Sheet 26-12: Forfeiture-training clause
