The employment relationship is characterized by certain features that distinguish it from civil law contracts (e.g. mandate contracts).
As defined in Art. 22 § 1 of the Labor Code, the employee is obliged to perform work, and the employer is obliged to hire the employee for remuneration.
In the judgment of 23 January 2020, II PK 228/18, the Supreme Court mentioned such constitutive features of the employment relationship as: voluntary, continuous personal work performance, subordination, performance of work for an employer bearing the risk related to employment and its paid nature . These features distinguish an employment relationship from other forms of employment.
A characteristic feature of the employment relationship is the principle of risk borne by the employer. It means that the employer bears the negative consequences not only of the inappropriate selection of employees, but also of no-fault mistakes made by the employee. Therefore, the employer is forced to bear the losses resulting from the employee’s lack of resourcefulness or the lack of proper preparation for work.
The requirement to perform work in person in the employment relationship means a close connection of the employment relationship with a specific person and his personal qualities, for example, qualifications, conscientiousness, diligence, reaching an appropriate age. The personality trait of the work performance justifies a special trust between the parties.
The Supreme Court also emphasized that the employment contract is a due diligence contract. In it, the employee undertakes to perform his duties diligently, and not to achieve a specific result. This means that, unlike a contract of mandate or other civil law contracts, in an employment relationship, liability for the consequences of culpable non-performance or improper performance of employee duties is assessed through the prism of diligence and not achieving a specific result.
The employer is also obliged to organize work, both in a way ensuring full use of working time as well as in a manner leading to the achievement by employees of high productivity and appropriate quality of work. It is not possible to assign to an employee, even employed in an independent position, sole responsibility for damage falling within the economic risk of the employer. This would mean a disproportionate transfer of the risk of the activity conducted by the employer to the employee.
The Supreme Court emphasized that the employee subordination that characterizes the employment relationship does not occur in obligatory civil law relations. It is related to the managerial powers of the employer, e.g. to issue orders in accordance with Art. 100 § 1 of the Labor Code This type of legal instruments is not available to entities ordering the performance of specific activities under civil law employment relationships.
The Supreme Court pointed out that it is up to the parties to choose the legal relationship they choose, but the choice of the employment relationship as the basis for employment requires adopting its properties.