Body leasing agreements in practice in the Polish IT sector
As it is difficult to find the right specialists on the market, body leasing is an increasingly popular means of finding qualified specialists for specific tasks. This is particularly true of the Polish IT sector. Meanwhile, due to this type of business relationship not being regulated specifically in Polish law, special care is required to protect the parties’ interests when drafting an agreement.
As a business model, body leasing is the short-term supply, due to the needs of the firm in question, from an outside vendor, of specialists with particular skills. The specialists perform ongoing tasks in the client’s organization.
Body leasing is not an issue that is regulated separately in Polish law, and for this reason the terms of the business relationship between the parties are defined primarily in an agreement. In commercial practice, this arrangement usually takes the form of an agreement for services. Essentially, this agreement concerns an obligation of the service provider (in this case the firm that supplies the specialists) to perform services for the client in a diligent manner by supplying specialists with the appropriate skills and ensuring that they duly perform the tasks specified by the client.
In the case of an agreement formulated in this way, there is no direct legal relationship between the specialist concerned and the client, and thus the supplier is an intermediary in the exercise of any of the client’s rights. Therefore, this is not only a question of detailed regulation of the terms regarding the obligation to supply specialists of specific skills, and where applicable the option of changing those persons, and obtaining intellectual property rights to the specialists’ work product. It is also a question of requiring the supplier to ensure that the specialists conform with the client’s organizational policies, and above all that they act in line with the supplier’s instructions.
Importantly, with regard to this last requirement, under the relevant rules in Polish employment law, if the direct supervision of the specialists by the client goes too far, the agreement will no longer be classed as a body leasing agreement based on freedom of the parties. The competent authorities, or even the persons performing the services themselves, could raise a claim demanding that the agreement is classed as an employment contract. This will have serious consequences, above all as regards paying public levies.
For the reasons explained above, when entering into a body leasing arrangement, special care must always be taken to ensure that the concluded agreement is adequately worded.