Technological progress not only means that companies can provide new and better services; it has a major impact on the labor market in a sector without which there would be no progress – the IT sector. Due to public levies related to employment contracts (taxes and social security) in the Polish IT sector, it is common for programmers to work for IT companies on a B2B basis instead of under employment relationships; IT companies use the services of programmers who work for the companies as independent, self-employed freelancers. The percentage of people working on B2B contracts is particularly high. According to the website No Fluff Jobs, as many as 75% of job offers for IT specialists in the whole of 2020 were for work on B2B contracts[1].

Above all, B2B contracts are formulated according to the principle of freedom of contract under contractual law, which means that the parties are treated equally and labor law rules do not apply. While labor law specifies a strict framework for an employment relationship to which the parties have to conform (statutory rules apply), under B2B contracts the IT company and the self-employed IT programmer are not bound by labor law requirements when structuring their business relationship. At the same time, freedom of contract does not mean forming a relationship harmful to one of the parties due to exploitation for instance of a situation of disadvantage or inequality between the parties.

When defining the terms of their business relationship, the parties to a B2B contract need to consider that the agreed terms of the B2B contract could mean it is classified as an employment relationship regardless of the name or wording of the agreement between them.

The typical characteristics of an employment relationship are:

  • the employee is subordinate (supervised by the employer)
  • there is a specified time and place for performance of work,
  • the employer provides the employee with the tools needed for the work,
  • holiday leave entitlement, which is a specified period (20 or 26 days depending on the number of years in employment) for which an employee is entitled to full remuneration when not performing work.

If an IT company and programmer wish to do business on terms that do not constitute an employment relationship, they need to form a relationship that does not fulfill employment law requirements.

A noteworthy B2B contract practice is the common applicability of a non-compete clause, forbidding the programmer from providing services for a competitive IT company. In view of the principle of freedom of contract, the parties to a B2B contract are free to formulate that non-compete rule as they wish, in terms of the entities, scope, and duration of that obligation, or also liability in the event of breach. Unlike in the case of an employment contract, which has to state precise rules of a non-compete obligation, B2B contracts can state a non-compete obligation broadly provided it does not cause harm to the person bound by it.

[1] https://itwiz.pl/rosnie-liczba-jednoosobowych-firm-it-w-2020-roku-bylo-ich-w-polsce-ponad-112-tys/ (access: February 25, 2022)