Helping employees to raise their professional qualifications is a basic duty of employers and is also one of the cornerstones of labour law. Employee training is an integral part of today’s labour market, in which technological developments and the associated changes in how work is organised are, essentially, forcing upskilling and retraining. This topic is also particularly relevant to the policies that employers draw up, which increasingly offer subsidised training to employees as a benefit encouraging them accept offers of jobs or to remain in employment.

Specialist knowledge and skills are a source of competitiveness not only for individual employees, but also for the entire enterprise. This is driving employers to invest in the upskilling and reskilling of their employees. Therefore, it is worth taking a look at the proper classification of and accounting for employee training, especially as the implementation of EU regulations into Polish legal order has seen an increase in code rules in this area since last year.

Accounting for training costs

For employers, the rules for how to account for employee training costs are undoubtedly important. In this context, a distinction should be made between mandatory training, training received as part of raising professional qualifications and other training.

Mandatory training is provided entirely at the employer’s expense (Article 94¹³ of the Labour Code). But what do we mean by mandatory training? This is:

1. training courses that meet all of the following conditions:
   1. are necessary for the performance of a specific type of work or a job in a specific position,
   2. the employer’s obligation to carry them out follows from the provisions of a collective bargaining agreement, other collective agreement, regulations, legislation or the employment contract,
2. training undertaken by an employee based on an instruction from a superior.

In practice, this category may therefore include, for example, mandatory training in health and safety (because arising from the law) or training on the employer’s internal systems that the employee will use in his or her duties (when instructed by a superior). The above rules are relatively new, because they were introduced into the Labour Code in April 2023 as part of the implementation into Polish legal order of Directive 2019/1152 on transparent and predictable working conditions in the European Union.

What has not changed, though, are the existing rules, regulated in Section IV, Chapter III of the Labour Code, concerning employees improving their professional qualifications (namely if acquiring or supplementing their knowledge and skills, either on the employer’s initiative or with the employer’s consent). Significantly, the employer’s initiative or consent to improve qualifications should not be equated with the employer having an obligation to provide the given training. An “employer’s initiative” is also not meant to mean basically an official instruction with which the employee must agree.

An employee who is improving his / her professional qualifications is entitled to, among others, training leave (of 6–21 days) and time off from all or part of the working day (for the time required to arrive on time for the mandatory classes and for their duration). For the duration of the leave for training and for the time taken off from all or part of the working day, the employee retains the right to receive remuneration. The level of this remuneration is determined by the rules that apply for holiday pay (but the components of remuneration used to determine the monthly average are taken from the month of the leave of absence from work or the non-working period).

The employer does not have to fund the training costs of employees who are improving their professional qualifications . It may, of course, do so voluntarily as part of its upskilling policy. The employer may also grant other fringe benefits to upskilling employees, in particular pay for their travel costs, study materials or accommodation.

An employee who is gaining or supplementing knowledge and skills on terms other than above (such as raising professional qualifications on own initiative, without the employer’s consent) may be exempted from all or part of a working day without a right to remuneration or be granted unpaid leave in an amount established in an agreement between the employer and the employee. Naturally, as part of their proposal of training and supporting their employees’ development, employers may offer more favourable terms for such additional training.

Training time versus working time

For employers, apart from accounting for the costs of training, the issue of accounting for training time is clearly also important.

Mandatory training should, as far as possible, take place during an employee’s working hours. However, if this is not possible, the time spent on training should be included in the employee’s working time. Although there are contrary views in this respect, it would seem that the above should be understood as meaning that employees have a right to settle the time spent on such training as overtime. Employers should, therefore, be mindful of the overtime limit and need to ensure that employees get adequate daily and weekly rest.

In this context, it should also be pointed out that if the training involves improving the employee's professional qualifications, then the employee is entitled to time off from all or part of the working day, for the time required to arrive punctually for the mandatory classes and for their duration.

Interestingly, legislators have not regulated the relationship between the provision on mandatory training and the rules on improving professional qualifications. Therefore, it cannot be ruled out that a given training (e.g., postgraduate study) will qualify as mandatory training as well as improving professional qualifications. It follows from the justification of the Act that introduced Article 94¹³ of the Labour Code, that in such a case the rules for both categories of training should apply in parallel.

The legislation also does not prevent an employer organising optional training courses during leisure time. For example, a popular benefit organised by employers is courses in foreign languages, knowledge of which is not required for working at the employer. The time spent on such optional training courses will not count as working time for the participants.

How to secure an investment made in upskilling employees?

Sometimes, after completing employer-funded upskilling, an employee who has been trained will then resign from employment. In order to protect against such scenarios, the employer may conclude with the employee an agreement for raising professional qualifications, also known as a training agreement. This may stipulate a requirement for the employee to remain in employment for a certain period after completing the upskilling. Significantly, if the training agreement contains such an obligation on the part of the employee, it should be concluded in writing, otherwise it will be invalid. On the other hand, the duration of the post-upskilling employment should be commensurate to the benefits provided by the employer in the training agreement, but it should not exceed, in any case, 3 years.

If additional benefits (e.g., tuition fees, travel costs, textbooks and accommodation) are provided to an employee who is improving his / her professional qualifications, the employee may be required to reimburse the costs to the employer. This will arise, if:

1. the employee has failed to undertake the upskilling without good reason or interrupts it,
2. the employer terminates the employment of the employee without notice due to a fault of the employee, during the upskilling or after its completion in the period specified in the training contract, but not exceeding 3 years,
3. the employee terminates the employment with notice in the period stated in 2), except for a termination by the employee due to harassment,
4. the employee terminates the employment without notice in the period stated in 2), due to a fault of the employer, despite there being no reasons for it.

In the above cases, the employer may claim a reimbursement of costs from the employee. The amount of the reimbursement will depend on whether the employee has undertaken to remain in employment after completing the training. If the training contract stipulates such an obligation, the reimbursement will be proportionate to the period of employment that the employee has undertaken to work for the employer after completing the training. If there is no such obligation, the reimbursement will be proportionate to the period of employment during the upskilling training. It should be stressed that the reimbursement will be limited to the value of the additional benefits paid for by the employer. Thus, the reimbursement will not include, for example, remuneration for the duration of training leave or for time off work granted to the employee in order to take part in classes.

Irrespective of the option of requiring employees to remain in employment following training or claiming a reimbursement of costs associated with training, it is also important that the training rules applying at the employer should be regulated in detail. The internal rules and regulations in this area should be tailored to the specific nature of the organisation in question and should clearly specify the rules and procedures for how employees may raise their professional qualifications. Employers with an upskilling policy should also take care to ensure that their training rules comply with the principles of equal treatment and non-discrimination. The internal regulations on training may also include provisions on the planning of training, evaluating its effectiveness or the budget that the employer allocates for this purpose.

Summary

The realities of today’s workplace mean that there is a more pressing need than ever for employees to improve their qualifications. Labour laws provide a number of regulations in this regard, the knowledge and skilful application of which are indispensable in managing human resources. Therefore, employers will find it worthwhile to review their rules and regulations in this area, so as to be not only attractive to employees, but also in compliance with the law.

Joanna Dudek, Natalia Bigdowska