When does a B2B contract start to look like an employment relationship?

Availability vs. subordination – different meanings

As the Supreme Court held in its judgment of 10 May 2018 (I PK 60/17), the essence of an employment relationship is performing work under the direction of the employer, meaning within a framework of subordination. The employee does not have autonomy in defining their ongoing tasks – it is the employer who decides what should be done and how. At the same time, mere availability to the contracting entity is not sufficient to establish an employment relationship. As the Supreme Court pointed out in its judgment of 25 November 2005 (I UK 68/05), availability can also occur under civil law contracts. What matters is not whether the contractor is available, but whether they actually follow the principal’s instructions within an organised work process.

The parties’ intent and independence in execution

Case law consistently emphasises that the parties’ intent plays an important – though not decisive – role in classifying the legal relationship. In its judgment of 21 January 2021 (III PSKP 3/21), the Supreme Court reminded that the basis of employment can be determined by the parties, provided the content of the contract does not contradict the nature of the relationship. In practice, this means that similar duties may be performed under either an employment contract or a civil law agreement. In another ruling cited in that case (Supreme Court, 24 November 2011, I PK 62/11), the Court also stated that the use of a company car or mobile phone does not by itself indicate an employment relationship. If the contractor retains freedom in organising their work, decides independently on time and place, and is not under constant supervision, the cooperation may retain a civil law character.

Breaks in service provision – not always a “holiday”

One issue often raising doubts among entrepreneurs is granting a contractor a paid break in service provision. However, as the Warsaw Court of Appeal stated in its judgment of 13 September 2006 (III AUa 662/06), the mere fact of granting a paid break – even equivalent in length to statutory leave – does not automatically establish an employment relationship. What matters most is the parties’ intent and the actual manner of performance. Lower courts have expressed similar views. For instance, the Warsaw District Court in its judgment of 24 June 2014 (VI P 579/11) held that granting a break does not constitute evidence of employee subordination if the contractor remains autonomous, does not submit leave requests, and does not require the client’s consent for absence.

Provision of tools and organisational structure

Using tools belonging to the client – such as a laptop, phone, or car – likewise does not in itself indicate employment. As noted by the Supreme Court in its judgment of 24 November 2011 (I PK 62/11), use of company equipment may simply reflect the need for efficient contract performance and does not imply subordination. Similarly, in its decision of 30 November 2023 (III PSK 3/23), the Supreme Court stressed that the actual manner in which the relationship is carried out, not the formal wording of the contract, determines its nature. Likewise, assigning an individual to a position within the company’s organisational structure is not sufficient to establish an employment relationship – unless it is accompanied by day-to-day supervision and instructions from a superior.

Key elements that determine an employment relationship

The most comprehensive set of criteria was outlined by the Supreme Court in its decision of 10 January 2024 (II USK 308/22). The Court stated that an employment relationship exists, among others, where there is an obligation to perform work personally, a defined working time (e.g. 40 hours per week), regular reporting on assigned tasks, and the absence of business risk for the contractor. In such circumstances, even a formally civil law contract does not change the actual employment nature of the relationship. Meanwhile, in its judgment of 11 September 2013 (II PK 372/12, OSNP 2014 No. 6, item 80), the Supreme Court noted that while some elements of supervision may appear in service contracts, they do not necessarily amount to subordination within the meaning of Article 22 §1 of the Labour Code. Ultimately, it is the actual way the duties are performed, not the contract’s name or form, that determines the legal classification.

Conclusion

When analysing the risk of reclassifying civil law contracts (including B2B agreements) as employment contracts, it becomes clear that elements such as breaks in service, employee benefits, or access to company tools are auxiliary – but never decisive – factors. However, the accumulation of such features can create a cumulative effect leading to the conclusion that an employment relationship exists, which from the client’s perspective is undesirable.

The decisive elements remain twofold: employee subordination and the parties’ intent.
Subordination means dependence on the employer, receiving instructions, being assessed on timeliness and quality of work, and lacking independence in setting priorities. The parties’ intent, on the other hand, is assessed at the moment of contract conclusion – by analysing their genuine will, the reasons for choosing a specific cooperation model, and whether there were any barriers preventing the conclusion of another type of contract.