Publication date: December 12, 2025
The main differences between these contracts
An employment contract and a contract of mandate have their origins in two different regulations. An employment contract is regulated in the Labor Code (Chapter 2, Section 1), while a contract of mandate has its essential negotiating power in Title XXI of the Civil Code. However, an employment contract requires the application of the provisions of the Civil Code regarding, for example, defects in a declaration of intent (Articles 82-88), negotiations, or offers (Articles 66-72). As the Supreme Court noted in its judgment of November 29, 2017, I PK 358/16, LEX No. 2433081, in addition to personal subordination between employer and employee, legal issues are also important due to the various legal consequences these contracts have. A contract of mandate does not obligate the principal and the contractor to conclude an agreement, although regardless of the name of the contract, if it contains the requirements of Article 22 § 1 of the Labor Code, it becomes an employment contract.
Art. 22. [Employment relationship]
§ 1. By entering into an employment relationship, the employee undertakes to perform work of a specific type for the employer and under his supervision and at the place and time designated by the employer, and the employer undertakes to employ the employee for remuneration.
The characteristic features of an employment contract include:
A mandate contract, as a civil law agreement, requires the mandator to perform a specific legal act for the mandator, in return for a specified fee. This contract should specify its precise subject matter and the fee. It has a very flexible form, as the legislature does not impose its form.
The Labor Code clearly prohibits, in Article 22 § 12 replacing an employment contract with a civil law contract while maintaining the elements of an employment contract, as this constitutes a prohibited act under Article 281 § 1 section 1, which carries a penalty of PLN 1,000 to PLN 30,000.
Why do employers and their employees do this?
There are several reasons for choosing this form of employment. Below there are highlighted the benefits.
• the Principal does not have to pay insurance contributions to ZUS for the contractor.
• the Principal does not have to pay the “employee” for sickness and vacation time.
• The parties do not have to subordinate the contract to a specific form, which makes it easier to document.
• The Principal is not bound by the notice period.
The contractor, however:
• has the possibility of working for several employees.
• time flexibility.
• simpler hiring process.
An employee under an employment contract has a wide range of rights, such as:
A groundbreaking judgment
Judgment of the Supreme Court of 29 November 2017, Case I PK 358/16. Examination of the nature of the legal relationship within the framework of which work is performed. Forms of employee subordination to the employer.
What was this case about?
The case concerned determining whether the legal relationship between a paramedic and the Provincial Emergency Medical Service constituted an employment relationship or a civil law contract. The key issue was whether the plaintiff—despite signing a civil law contract—actually performed work under conditions consistent with an employment relationship, meaning that the civil law contract was concluded only formally, when in reality it should have been treated as an employment contract.
Conclusions and significance of the judgment
a/ It is not the name of the contract that determines its nature, but the actual conditions of its performance.
If an employee performs his or her duties under the employer’s direction, at a designated place and time, we are dealing with an employment relationship, even if a civil law contract has been formally signed.
b/ The subordination of an employee is a key criterion for assessing the employment relationship.
It is not enough that the employer does not issue direct orders – if the employer organizes the work, imposes the hours and place of its performance, then an employment relationship exists.
c/ Economic coercion should not determine the form of employment.
An employee may formally consent to a civil law contract, but if he or she had no real choice, the court should carefully examine whether the contract does not mask an employment relationship.
d/ Each case requires an individual analysis, taking into account actual duties and working conditions.
The Supreme Court stressed that in case of doubts, the court should carefully examine the factual circumstances and not rely solely on the formal content of the contract.
Summary
This judgment demonstrates the importance of a detailed examination of the actual terms and conditions of employment. Employers cannot substitute civil law contracts for employment contracts if the characteristics of an employment relationship actually exist. The Supreme Court’s decision emphasizes that courts must analyze not only the content of the contract but also the manner in which it is performed.
Recommendations:
1. Making sure that the contract is actually a contract of mandate
It is important that the mandate contract does not have any features that would suggest it is an employment contract under Article 22. A mandate contract is characterized by a certain flexibility and its purpose is to perform a specific task, not to provide work under subordination. Therefore:
a/ Scope of the assignment: The contract should specify specific tasks or a project to be performed, not a general obligation to perform work for the employer.
b/ Working Hours: The contractor should not be required to adhere to strict working hours or be permanently present at the employer’s workplace. This should be a task to be completed within a specified time, but it does not involve regulated working hours as would be the case with an employment contract.
c/ Workplace: The contractor should be able to choose the place where the work is performed (unless the assignment requires a specific place), unlike an employment contract which ties the employee to a specific place.
d/ Flexibility of execution: An employee employed under an employment contract is obliged to perform work in accordance with the company’s regulations and structure, while a contractor has greater autonomy in carrying out the task.
2. Distinguishing a contract of mandate from an employment contract
It is worth remembering that a mandate contract is a civil law contract, not an employment relationship. Therefore:
a/ Lack of subordination: A contractor is not subordinated to the employer in the same way as an employee. The employer has no right to impose on them obligations related to work organization (e.g., determining working hours, work location, work method, or supervising its execution).
b/ Lack of structured work: In an employment contract, the employee is part of an organized team and performs duties within that team. A contractor operates more independently, completing a specific task within a specific timeframe, but is not subject to day-to-day supervision.
3. Documenting the characteristics of cooperation
It is important to ensure that the contract is properly documented and includes provisions that demonstrate its civil law nature. For example:
a/ Detailed description of the order / mandate: The contract should precisely specify what is to be performed, at what time and under what terms.
b/ No fixed working hours: The contract should clearly state that the contractor has the freedom to organize his or her working time and that the employer does not impose on him or her the hours or place of work.
c/ Remuneration for the execution of an order: The contractor’s remuneration should depend on the performance of a specific task, and not be paid on a regular basis, like a monthly salary in the case of an employment contract.
4. Maintaining the contractor’s actual independence
The key issue is demonstrating that the individual employed under a mandate contract performs their work independently, is not under the employer’s control, is not obligated to adhere to internal regulations, and does not operate within an organized work system. It is crucial to avoid creating the appearance of subordination, which could suggest that it is an employment contract.
5. No indication of a permanent place of work
If the contractor is to perform their tasks in various locations (e.g., as a freelancer or consultant), there is no reason to designate a single, permanent work location. It is advisable for the contract to specify only the purpose of the assignment and not to interfere with the details of the location where the work will be performed.
6. Emphasizing the lack of remuneration for working time, but for the results of work
A mandate contract, unlike an employment contract, should focus on remuneration for the work product (e.g., for completing a specific task), not for time spent working. This indicates a lack of subordination and allows for the argument that a mandate contract cannot be treated as an employment contract.
7. Employment in situations appropriate to a civil law contract
Contracts of mandate should be used in situations that require the execution of specific tasks, not permanent employment within the company. Typical examples include occasional work, consulting, and project implementation, rather than long-term assignments typical of an employment relationship.
8. Confirmation of actual practice
If a company employs employees on a contract basis, it is good to have documentation showing that these people actually act in accordance with the civil law contract (e.g. invoices, reports on completed orders, correspondence regarding the execution of orders).