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 establish the fraudulent misappropriation — an intent to harm is never presumed. A Spanish court has just forcefully reaffirmed 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 produce evidence establishing her personal responsibility. For a French HR director, the value of this decision is procedural: it illustrates an evidentiary standard shared by French law, under which an alleged gross misconduct collapses the moment proof of the wrongful act is not produced. 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: recording 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 payment system, theft by a third party, or — as found in the Spanish case — a scam of which the employee herself is the victim.

An HR director who confuses an accounting anomaly with intentional misconduct commits a characterization error that undermines the entire procedure. Under French law, dismissal for gross misconduct requires conduct making it impossible to keep the employee within 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 a deliberate misappropriation, does not constitute genuine and serious grounds (cause réelle et sérieuse).

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

In French employment law, as in Spanish law, the burden of proving gross misconduct falls entirely on the employer. This is a principle frequently underestimated by management teams who reason in terms of operational logic (“the shortfall is recorded, the cashier in charge must answer for it”) rather than evidentiary logic (“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 his conviction based on the evidence submitted by the parties, and that any doubt benefits the employee. In other words, if the employer fails to produce sufficient proof of the materiality and attributability of the theft, the dismissal is held to lack genuine and serious grounds — and, a fortiori, to lack 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. As the retailer failed to establish that the employee had misappropriated the funds, the sanction — which is, moreover, the most severe in the disciplinary arsenal — was 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 into the assessment of whether the alleged wrongdoing is serious — or not.

Practitioner’s note: “The classic HR mistake is to treat presumed theft as an ‘objective’ fault that is self-sufficient. In reality, the greater the length of service, the more rigorous the 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 transposable to French litigation, where impeccable length of service weighs both on the characterization of the misconduct and on the assessment of damages in the event of 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. Under French law, reinstatement is a matter of right only in limited circumstances: nullity of the dismissal (protected employee, discrimination, breach of a fundamental freedom, harassment). For a dismissal that simply lacks genuine and serious grounds, the judge may 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 management’s main blind spot lies. To establish a theft, the employer frequently relies on video surveillance, payment records, unannounced audits, or witness statements. Yet these forms of evidence are subject to strict lawfulness requirements.

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

The feared 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, only the till shortfall remains — insufficient in itself — and the dismissal collapses. No compliance check had flagged the defect beforehand.

What the Spanish Case Adds to the French Analysis

The most counter-intuitive contribution of this decision lies in the characterization of the employee as a victim. Where the employer saw a perpetrator of 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 scam. Ruling out these possibilities in writing strengthens the robustness of the case; ignoring them exposes the employer to having a judge raise them independently in litigation and shift the burden of proof back against 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 materiality — gather the evidence demonstrating the misappropriation itself, beyond the mere recording of an accounting shortfall.
2. Verify the lawfulness of each piece of evidence — surveillance system declared, CSE informed, employee advised of the existence of the controls; 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 scam, malfunction.
5. Assess proportionality — factor in length of service and the absence of prior incidents in the choice of sanction.
6. Build a dated and signed file — investigation reports, statements of finding, correspondence, time-stamped documents.

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

Frequently Asked Questions

Is a till shortfall sufficient 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, doubt benefits the employee (Article L.1235-1 of the French Labour Code) and gross misconduct is set aside.

Can video surveillance prove an employee’s theft?

Only if the system is lawful: prior information of employees, consultation of the CSE (works council), 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 simple 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, notably where the dismissal rests on an infringement of a fundamental freedom.

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

Yes. Long service with no prior incident heightens 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 value is comparative: it illustrates a common evidentiary standard under which the burden of proving misconduct falls 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 scam, technical failure), and build 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 unfairly obtained?

The evidence may be excluded from the proceedings. If no other element establishing the misconduct remains, the dismissal becomes devoid of genuine and serious grounds, giving rise to compensation — or even nullity and reinstatement if a fundamental freedom was breached during the collection.