Presumed Theft and Dismissal: What a Spanish Ruling Reveals About the Burden of Proof

A dismissal for gross misconduct (faute grave) based on theft requires the employer to materially prove the fraudulent misappropriation — intent to cause harm cannot be presumed. A Spanish court has just forcefully reiterated this principle: a supermarket cashier, employed for more than twenty years, was reinstated after being dismissed over a €550 shortfall in her till. The judges found that she had been the victim of a deceptive scheme and that the retailer had failed to provide evidence establishing her personal responsibility. For a French HR director, the interest of this decision is procedural: it illustrates a standard of proof that French law shares, where an alleged gross misconduct collapses as soon as proof of the wrongful act is not provided. Here is what this case teaches about the litigation risk of dismissal for presumed theft.

The Triggering Fact: A Till Shortfall Is Not Proof of Theft

The starting point of the reasoning is essential: finding a €550 discrepancy in a till proves nothing as to who caused it or as to any fraudulent intent. A shortfall may result from a change-giving error, a malfunction in the point-of-sale system, theft by a third party, or — as found in the Spanish case — a scam of which the employee herself was the victim.

An HR director who confuses an accounting anomaly with intentional misconduct makes a classification error that undermines the entire procedure. Under French law, dismissal for gross misconduct requires conduct making it impossible to keep the employee in the company. The case law of the Cour de cassation (French Supreme Court) requires that the facts be established and personally attributable to the employee. A mere till discrepancy, without evidence demonstrating deliberate misappropriation, does not constitute genuine and serious grounds (cause réelle et sérieuse).

Burden of Proof: The Shift in the Employee’s Favour

Under French employment law, as under Spanish law, the burden of proving gross misconduct rests entirely on the employer. This is a principle frequently underestimated by management teams who reason from a management standpoint (“the shortfall has been recorded, the person in charge of the till must answer for it”) rather than from an evidentiary standpoint (“can I prove before a judge that she stole?”).

Article L.1235-1 of the French Labour Code provides that, in the event of a dispute over the grounds for dismissal, the judge forms their conviction based on the evidence submitted by the parties, and that any doubt benefits the employee. In other words, if the employer fails to provide sufficient proof of the material fact and the attributability of the theft, the dismissal is held to be without genuine and serious grounds — and a fortiori without gross misconduct.

The Spanish case applies the same framework: it is not for the employee to prove her innocence, but for the employer to prove the misconduct. Having failed to establish that the employee had appropriated the funds, the retailer saw the sanction — which is, moreover, the most severe in the disciplinary arsenal — invalidated.

Length of Service as a Proportionality Factor

The fact that the employee had accumulated more than twenty years of service is not incidental. The proportionality of the sanction is assessed in light of the entire employment relationship. A long career with no prior incident is a factor the judge incorporates when assessing whether the alleged breach is serious — or not.

Practitioner’s note: “The classic HR mistake is to treat presumed theft as an ‘objective’ fault that would be self-sufficient. In reality, the longer the length of service, the more rigorous a demonstration the judge expects: twenty years of impeccable conduct create a presumption of reliability that the employer must rebut with evidence, not circumvent through suspicion.”

This dimension is directly transferable to French litigation, where impeccable length of service weighs both on the classification of the misconduct and on the assessment of damages in the event of an unjustified dismissal.

Reinstatement: A Rare Outcome in France, but a Strong Signal

Under Spanish law, the invalidation of a dismissal may give rise to a right to reinstatement of the employee. Under French law, reinstatement is available as of right only in limited situations: nullity of the dismissal (protected employee, discrimination, violation of a fundamental freedom, harassment). For a dismissal that is merely without genuine and serious grounds, the judge can only propose reinstatement, which the employer remains free to refuse (Article L.1235-3 of the French Labour Code), the dispute then being resolved through compensation.

The point of attention for the French employer: if the dismissal for presumed theft infringes a fundamental freedom — for example if it relies on unlawful surveillance of the employee — nullity may be incurred, and with it a right to reinstatement. The manner in which the proof of theft was collected then becomes decisive.

The Achilles’ Heel: The Lawfulness of the Evidence Collected

This is where the main blind spot of management teams lies. To establish theft, the employer frequently relies on video surveillance, transaction records, unannounced checks, or witness statements. Yet these forms of evidence are subject to strict conditions of lawfulness.

A video surveillance system deployed without the employee’s knowledge, without prior notice or consultation of the CSE (Comité Social et Économique, the works council), constitutes evidence whose fairness is questionable. The Cour de cassation has shifted its position on the admissibility of unfairly obtained evidence, but the principle remains: evidence obtained in violation of the employee’s rights exposes the employer to having its demonstration set aside — and its dismissal invalidated for lack of any other probative element.

The dreaded scenario: the HR director builds the case on video surveillance footage, dismisses for gross misconduct, then discovers at the hearing that the system had neither been brought to the employees’ attention nor declared. The evidence is set aside, all that remains is the till shortfall — insufficient in itself — and the dismissal collapses. No compliance review had flagged the defect upstream.

What the Spanish Case Adds to French Reasoning

The most counterintuitive contribution of this decision lies in the classification of the employee as a victim. Where the employer saw the perpetrator of a theft, the judges found a person deceived by a third party. This shift in perspective — from suspect to victim — deserves to be incorporated into every internal investigation.

In practical terms, before initiating disciplinary proceedings for theft, management is well advised to document the alternative hypotheses: technical error, procedural failure, external fraud. Ruling out these possibilities in writing strengthens the robustness of the case; ignoring them exposes the employer to a judge raising them independently in litigation and shifting the burden of demonstration back onto the employer.

This rigour of investigation is not a theoretical precaution: it is the difference between a dismissal that is secure on evidentiary grounds and a termination that will be held to be wrongful.

Method: Securing a Dismissal for Presumed Theft

For the French employer, before any notification:

1. Establish the material fact — gather the evidence demonstrating the misappropriation itself, beyond the mere finding of an accounting shortfall.
2. Verify the lawfulness of each piece of evidence — surveillance system declared, CSE informed, employee notified of the existence of checks; set aside any unfairly obtained evidence.
3. Document personal attributability — demonstrate that the act is attributable to the targeted employee, and not to a third party or a system failure.
4. Rule out alternative hypotheses in writing — error, external fraud, malfunction.
5. Assess proportionality — factor in length of service and the absence of prior incidents when choosing the sanction.
6. Compile a dated and signed file — investigation reports, records of findings, correspondence, time-stamped documents.

The document to produce in the event of litigation: a complete evidentiary file establishing the material fact, the attributability, and the lawfulness of the evidence. Without it, any doubt benefits the employee.

Frequently Asked Questions

Is a till shortfall enough to justify a dismissal for gross misconduct?

No. An accounting discrepancy establishes an anomaly, not a theft. The employer must demonstrate the fraudulent misappropriation and its personal attributability to the employee. Failing this, any doubt benefits the employee (Article L.1235-1 of the French Labour Code) and gross misconduct is ruled out.

Can video surveillance prove theft by an employee?

Only if the system is lawful: prior notice to employees, consultation of the CSE, declared purpose. Covert video surveillance exposes the employer to having the evidence set aside at the hearing, which may cause the dismissal to collapse for lack of any other element.

Can an employee dismissed for unproven theft be reinstated in France?

In principle no, for a mere lack of genuine and serious grounds: the judge proposes reinstatement, but the employer may refuse it (Article L.1235-3). Reinstatement is mandatory only in cases of nullity, in particular if the dismissal relies on an infringement of a fundamental freedom.

Does the employee’s length of service affect the assessment of the theft?

Yes. Long length of service with no prior incident increases the evidentiary requirement and weighs on the proportionality of the sanction. It also increases the compensation due if the dismissal is held to be unjustified.

Does a Spanish ruling have legal force in France?

No, it does not bind French courts. Its interest is comparative: it illustrates a common standard of proof under which the burden of proving the misconduct rests on the employer, a principle fully applicable in French employment law.

How should an internal investigation be documented before a dismissal for theft?

Gather lawful material evidence, interview the employee, rule out alternative hypotheses in writing (error, external fraud, technical failure), and compile a dated and time-stamped file. These documents determine the robustness of the dismissal in the event of litigation.

What does the employer risk if the proof of theft is held to be unfair?

The evidence may be excluded from the proceedings. If no other element establishing the misconduct remains, the dismissal becomes without genuine and serious grounds, giving rise to compensation — or even to nullity and reinstatement if a fundamental freedom was violated during collection.