Outsourcing of Employees in Poland – What Should Employers Pay Attention To?

As a business grows, with increasing employment and the need for cost optimization, entrepreneurs face many challenges. One of the solutions is outsourcing – delegating internal processes to external parties, such as in the areas of HR, payroll, accounting, or IT. Outsourcing of specialists in Poland can contribute to cost reduction and improved quality of tasks, but it also comes with certain risks, including legal ones. In this article, we will discuss how to avoid these risks and what employers should know about outsourcing from the perspective of labor law.

What is Outsourcing of Employees in Poland?

Outsourcing of workers in Poland, in legal terms, refers to a situation where a company decides to outsource certain processes or services to an external entity. It is important to note that there is no precise definition of outsourcing in Polish law. However, according to the Supreme Court’s rulings, outsourcing means separating certain functions of a business and transferring them to other entities. From the perspective of labor law, outsourcing becomes relevant when it involves transferring employees to work for another entity – this is referred to as employee outsourcing.

Employee outsourcing is often confused with terms like employee leasing, body leasing, or temporary work in Poland. Although these concepts have a similar goal – utilizing the work of individuals employed by external companies – there are significant differences between them that are worth understanding.

Outsourcing vs. Temporary Work

Temporary work in Poland is defined in the Act on Temporary Employment and differs from employee outsourcing in that temporary employees perform their tasks under the direct supervision and management of the client employer. Outsourcing of employees in Poland, on the other hand, involves a situation where the company outsourcing the work (the insourcer) has no influence over how the work is performed by the external entity, and supervision is limited to the quality of the services provided, not the method of work.

Outsourcing vs. Body Leasing and Employee Leasing in Poland

In the case of body leasing and employee leasing in Poland, companies rent specialists from external firms for a specified period, often for specific projects (e.g., software implementation). Outsourcing, however, assumes that the external entity (the outsourcer) handles entire processes for the contracting company, using its own employees.

Outsourcing Agreement in Practice

Outsourcing agreements can be concluded based on standard civil law contracts (service agreements, contracts for specific tasks) or unnamed contracts. The key element is the content of the agreement, which should contain clauses clearly indicating employee outsourcing. The agreement must state that the outsourcer is not under the control of the insourcer. If the contract does not clearly state that the outsourcing does not concern temporary work, there is a risk that the company may be subject to restrictions under the temporary work regulations.

A well-drafted outsourcing agreement should specify:

1. What processes and functions will be performed by the outsourcer,
2. How the outsourcer should perform the assigned tasks (whether with its own employees or using the insourcer’s employees),
3. How the quality control of the provided services will be conducted.

Outsourcing and the Transfer of a Workplace

From the perspective of labor law, an important issue is the transfer of a workplace within outsourcing. According to Article 231 of the Labor Code, if a company or part of a company is taken over by another employer, employees are transferred to the new employer while maintaining continuous employment. In the context of outsourcing, this could mean that employees associated with outsourced processes may be transferred to the external company, which requires the conclusion of a proper agreement and compliance with information obligations.

It is also worth noting that if the transfer of the workplace occurs, employees have the right to terminate the employment relationship with a short notice period (7 days) within two months from the transfer of the workplace. In practice, this may pose a risk of key personnel leaving, which requires proper safeguards such as retention bonuses.

Tripartite Agreement as a Method of Outsourcing Employees

In cases where outsourcing does not involve the transfer of a workplace, the parties can enter into a tripartite agreement that facilitates the transfer of employees from the insourcer to the outsourcer. Such an agreement must be favorable to employees and maintain their existing rights, including those related to their length of service.

Summary

Employee outsourcing is a legal organizational form that can bring numerous benefits to businesses, such as cost reduction and improved process efficiency. However, it is important to remember that it also comes with certain legal risks. To avoid issues, employers should carefully draft outsourcing agreements, ensure proper quality control of services, and conduct a detailed analysis to determine whether outsourcing leads to a transfer of the workplace. Employers should also be aware of regulations related to the transfer of employees and take appropriate measures to minimize the risk of key personnel leaving.

Source: https://www.parp.gov.pl/component/content/article/77222:outsourcing-pracownikow-na-co-powinien-zwrocic-uwage-pracodawca

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