Recent interpretations issued by the Polish State Labour Inspection (in Polish: Państwowa Inspekcja Pracy or PIP) show that companies cannot rely solely on the name of a contract when determining whether an arrangement constitutes employment. What matters is how the arrangement works in practice. In particular, PIP looks at who organises the work, sets day-to-day tasks and bears the business risk.
PIP has questioned arrangements involving students and individuals providing services in barbershops. At the same time, it has concluded that certain arrangements involving legal and specialist IT services did not constitute employment relationships. It has also accepted that a person may be employed by a company while providing separate B2B services to the same company.
The interpretations show that flexible hours, commission-based pay or freedom to choose how to perform a task may not be enough to support classification of the arrangement as a contract of mandate, a type of Polish civil-law services contract, or a B2B arrangement if, in practice, the person works as part of the company’s organisation.
In a case involving a chain of barbershops, the service providers could indicate their availability, decide how to cut hair, use their own tools and provide services to other businesses. Even so, PIP found that the arrangement described had more features of employment than of an independent service.
A key factor was that the barbers performed the salons’ core, recurring services using the salons’ premises, facilities, booking system, price list and customer service arrangements. The salons also bore the main business risk. PIP considered the freedom to choose a haircutting technique to be professional discretion, which an employee may also have.
PIP took a similar approach in an interpretation concerning students working as sales staff and production workers. The students could indicate their availability. Once they started work, however, they carried out tasks assigned according to the company’s current needs. PIP found that freedom to choose working hours does not necessarily mean independence in performing the work.
By contrast, PIP concluded that certain arrangements involving legal and specialist IT services did not constitute employment relationships. In those cases, the service providers had genuine independence, were responsible for the results and quality of their services and did not receive day-to-day instructions on how to work. Under the IT arrangements, they could also use subcontractors or substitutes.
PIP also accepted an arrangement in which the same person was an employee of a company and provided B2B services to it. The two sets of duties must be genuinely separate and performed in different ways, both on paper and in practice.
The interpretations highlight the difference between professional discretion and genuine independence in running a business.
A person may choose how to perform a task or state when they are available yet still work as part of the company’s organisation. Conversely, the use of a company computer, long-term arrangement, hourly fees or a requirement to provide services personally does not necessarily mean that an employment relationship exists. The arrangement must be assessed as a whole.
Companies should pay particular attention to arrangements in which people engaged under civil-law contracts perform core, recurring tasks, use company facilities and form part of day-to-day operations. The recent interpretations point to a greater risk that PIP may question arrangements in the beauty industry if they operate in a manner similar to the barbershop model described above. There is also increased risk for companies engaging students under contracts of mandate if, despite being free to choose their hours, the students perform tasks assigned according to the company’s current needs and work as part of its organisation.
Companies should therefore review not only their contracts, but also what happens in practice. A useful first step is to identify the working arrangements currently in place, check whether the documents reflect reality and determine which arrangements require changes.
That depends on the working arrangement and what the company wants to achieve.
An interpretation may confirm that a well-designed arrangement is a civil-law relationship rather than employment. It will not, however, protect an arrangement if the service provider’s independence exists only on paper.
Before applying, a company should review its existing arrangements, address clear differences between the documents and actual practice, and decide what type of arrangement it wants to maintain. It should also be noted that an interpretation binds PIP only in relation to the circumstances described in the application. If actual practice is different, PIP may reach a separate conclusion during an inspection.
The interpretation should therefore be sought only after the working arrangement has been reviewed, rather than used as the starting point of that review.
We can help you review contracts of mandate, service contracts and B2B arrangements, compare the documents with actual practice, and identify areas that need to change.
We can also help you decide whether an individual interpretation would be useful in your case, prepare the application and adjust your working arrangements considering PIP’s current approach.
For a deeper discussion on the above, or if you would like to discuss how PIP’s interpretations may affect your working arrangements, please contact:
Jadwiga Chorązka
Partner
Joanna Narkiewicz-Tarłowska
Managing Director
Grzegorz Ogórek
Director
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