Increasing risks in combining employment and B2B contracts

15 January 2024 | Knowledge, News, The Right Focus

It is becoming increasingly risky for employers to hire employees under both employment and B2B (sole proprietorship) contracts when it comes to employee social security contributions.

According to recent Supreme Court case law, the hiring of an employee under a dual model (employment contract + B2B contract) does not constitute a convergence of social security titles, i.e. an employment relationship and a sole proprietorship.

The Supreme Court points out that in such a case there is only one social security title, i.e. an employment relationship, which does not change or transform the B2B contracts concluded into an employment relationship.

Supreme Court rules on employees hired under both employment and B2B contracts

In practice, employers hiring employees under this model assume that there is a convergence of the two social security titles, i.e. an employment contract and a sole proprietorship. Therefore, if an employee receives the minimum remuneration under an employment contract, this contract usually becomes the only obligatory social security title for the employee and their employer.

This means that employers do not add the remuneration paid to such employees under a B2B contract to their social security assessment base (i.e. the remuneration under an employment contract). This results in lower social security contributions for employers. B2B social security is voluntary for employees and, if such employees (contractors) opt for it, it is at their own expense.

This model of hiring employees is a common market practice. Therefore, this was finally resolved by the Supreme Court in the Judgment of 25.04.2023, ref. no.: II USK 309/22.

Only one employee social security title

The Supreme Court has clearly stated that:

  • In the case of employees hired simultaneously under both an employment relationship and a B2B contract (sole proprietorship) on the basis of which they personally perform the work – there is no convergence of the two social security titles
  • A single social security title under an employment relationship is created, which does not abolish or change civil law (B2B) contracts
  • Article 8(2a) of the Social Security System Act is applicable, according to which ‘a person who performs work under an agency contract, a mandate contract or other services contract to which, in accordance with the Civil Code, the mandate provisions apply, or under a specific work contract, shall also be considered an employee, as defined in the Act, if such a contract is concluded with an employer with whom the person has an employment relationship or if the person performs work under such a contract for an employer with whom the person has an employment relationship.’

Thus, if the employer is the actual beneficiary of the work performed by a B2B employee, such a contractor is considered to be an employee performing work under other services contract concluded with the employer with whom the employee has an employment relationship (Article 8(2a) of the Social Security Act).

In practice, this means that the employer should pay social security
and health insurance contributions on both the remuneration paid to employees under employment and B2B contracts. In other words, their social security and health insurance assessment base will be the sum of the remuneration under the employment and B2B contracts.

Any questions? Contact

Angelika Stańko

 

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Contact us:

Anna Gwiazda

Anna Gwiazda

Attorney at Law, Partner, Head of Labor Law Practice

+48 660 765 903

a.gwiazda@kochanski.pl

Angelika Stańko

Angelika Stańko

Attorney at Law / Senior Associate / Labour Law

+48 22 326 3400

a.stanko@kochanski.pl