At first glance these seem to be two completely different topics. However, according to the Constitutional Court, consumer protection is also an important element in assessing the employer’s liability for an employee’s unlawful act. In the ruling of the Constitutional Court of June this year, Case No. II ÚS 288/23, the long-standing case law of the Supreme Court concerning the liability of an employer for an unlawful act of an employee in relation to a consumer was amended.

In this case, the victim sought compensation for damage caused by fraud. The fraud was perpetrated on the victims by an employee of Česká pošta when, as a specialist in the sale of Česká spořitelna’s investment products, he repeatedly gave clients a document with a request for redemption to sign. However, he subsequently added the date and his private account (not the clients’ account) to this document, where ČSOB subsequently paid him the funds invested by the client.

The criminal court ordered the accused employee of the Česká pošta, among other things, to compensate the victim for the damage caused in the amount of CZK 294,549.46. However, the accused paid only CZK 1,500 of this amount and the aggrieved person turned to the civil court to sue Česká pošta as the employer of the accused, claiming that the employer was liable for the actions of its employee.

The action brought by the aggrieved person against the Česká pošta, the employer of the accused, was dismissed by the general courts, with the exception of the court of first instance, on the grounds that the employer was not liable for the unlawful act committed by the employee in the performance of his work tasks, as it was an employee’s excess in this case. As a general rule, if an employee’s actions are not locally, temporally and purposely related to his/her work tasks, he/she commits an excess and the employer is not liable for such actions.

The aggrieved disagreed with the decision of the general courts and filed a constitutional complaint in this case based, inter alia, on arguments relating to consumer protection, and the Constitutional Court found in her favour. Thus, although the decisions of the general courts were based on earlier case law, they did not sufficiently deal with the fact that the damage occurred in the context of a consumer relationship and must therefore also be viewed through this lens.

According to the Constitutional Court, when deciding on the liability of an employer for an employee’s unlawful conduct towards a consumer, it is necessary, when interpreting the provisions of Section 167 of Act No. 89/2012 Coll. of the Civil Code, which regulates the attributability of unlawful conduct to a legal entity, to consistently take into account the position of the consumer as the weaker party to the contract and to choose the interpretation that is most favourable to the consumer.

The case law construction of employee’s excess cannot be applied if the consumer is a party to the contract and the employee commits an unlawful act in the performance of his/her work tasks. The construction of the excess relieves the employer from liability for damage caused by the employee’s unlawful conduct beyond the scope of the statutory regulation and is contrary to the constitutional principle of consumer protection. Insofar as the court applies the construction of excess to an aggrieved consumer, it violates the consumer’s constitutionally guaranteed rights to protection of property under Article 11(1) of the Charter of Fundamental Rights and Freedoms and to judicial protection under Article 36(1) of the Charter of Fundamental Rights and Freedoms.