Alleged 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 — intent to harm is never presumed. A Spanish court has just forcefully restated this principle: a supermarket cashier, employed for more than twenty years, was reinstated after being dismissed over a shortfall of €550 in her till. The judges found that she had been the victim of a deception 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, where the alleged gross misconduct collapses the moment proof of the wrongful act is lacking. Here is what this case teaches about the litigation risk of dismissal for alleged 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 an error in giving change, a malfunction of the payment system, theft by a third party, or — as held in the Spanish case — a fraud of which the employee herself is the victim.

An HR director who confuses an accounting anomaly with intentional misconduct commits a characterisation error that undermines the entire procedure. Under French law, dismissal for gross misconduct presupposes conduct that makes 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 deliberate misappropriation, does not constitute a genuine and serious cause (cause réelle et sérieuse).

Burden of Proof: The Balance Tips 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 in operational terms (“the shortfall is confirmed, the cashier must account for it”) rather than in evidentiary terms (“can I prove before a judge that she stole?”).

Article L.1235-1 of the French Labour Code provides that, where the grounds for dismissal are disputed, the judge forms their conviction on the basis of the evidence provided by the parties, and that doubt benefits the employee. In other words, if the employer fails to produce sufficient proof of both the materiality and the attributability of the theft, the dismissal will be held to be without genuine and serious cause — and a fortiori without gross misconduct.

The Spanish case applies the same architecture: 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 appropriated the funds, the sanction — the most severe in the disciplinary arsenal — was invalidated.

Length of Service as a Factor of Proportionality

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 that the judge takes into account when assessing whether the alleged breach is serious.

Practitioner’s insight: “The classic HR mistake is to treat alleged theft as an ‘objective’ fault that speaks for itself. In reality, the longer the length of service, the more the judge expects a rigorous demonstration: twenty years of impeccable conduct create a presumption of reliability that the employer must rebut with evidence, not bypass through suspicion.”

This dimension is directly transposable to French litigation, where impeccable seniority weighs both on the characterisation 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, invalidation of the dismissal may give rise to a right to reinstatement. Under French law, reinstatement is only available as of right in limited situations: nullity of the dismissal (protected employee, discrimination, violation of a fundamental freedom, harassment). For a dismissal that is simply devoid of genuine and serious cause, 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 alleged 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 gathered then becomes decisive.

The Achilles’ Heel: The Lawfulness of the Evidence Gathered

This is where management’s main blind spot lies. To establish theft, employers frequently rely on video surveillance, till records, unannounced checks, or witness statements. Yet these forms of evidence are subject to strict lawfulness requirements.

A video surveillance system deployed without the employee’s knowledge, with no prior information and no consultation of the CSE (Comité Social et Économique, the works council), constitutes evidence whose fairness is questionable. The Cour de cassation has adjusted 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 case dismissed — 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 not been brought to the employees’ attention nor declared. The evidence is excluded, leaving only the till shortfall — insufficient in itself — and the dismissal collapses. No compliance check had flagged the defect upstream.

What the Spanish Case Adds to French Reasoning

The most counter-intuitive contribution of this decision lies in the characterisation 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 built into any internal investigation.

In practice, 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 against the employer.

This investigative rigour is not a theoretical precaution: it is the difference between a dismissal secured on the evidentiary front and a termination that will be found to be wrongful.

Method: Securing a Dismissal for Alleged Theft

For the French employer, before any notification:

1. Establish materiality — gather the evidence demonstrating the misappropriation itself, beyond the mere finding of an accounting shortfall.
2. Verify the lawfulness of each piece of evidence — declared surveillance system, CSE informed, employee notified of the existence of checks; exclude any unfairly obtained evidence.
3. Document personal attributability — demonstrate that the act is attributable to the employee concerned, 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, findings, 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 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, 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 to employees, consultation of the CSE, declared purpose. Covert video surveillance exposes the employer to having the evidence excluded 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 cause: the judge proposes reinstatement but the employer may refuse it (Article L.1235-3). Reinstatement is only mandatory in cases of nullity, in particular where the dismissal relies on a violation of a fundamental freedom.

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

Yes. Long service without prior incident heightens the evidentiary requirement and weighs on the proportionality of the sanction. It also increases the compensation due if the dismissal is found 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 shared evidentiary standard where the burden of proving 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 found 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 cause, giving rise to compensation — or even nullity and reinstatement if a fundamental freedom was violated during the gathering of evidence.