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 demonstrate the fraudulent taking — intent to cause harm cannot be presumed. A Spanish court has just forcefully reaffirmed this: a supermarket cashier, employed for more than twenty years, was reinstated after being dismissed over a €550 shortfall in her till. The judges held that she had been the victim of a deception scheme and that the retailer had failed to provide evidence establishing her personal responsibility. For a French HR director, the value of this decision is procedural: it illustrates a standard of proof that French law shares, where the alleged gross misconduct collapses as soon as proof of the wrongful act is not produced. Here is what this case teaches about the litigation risk of dismissal for alleged theft.

The Triggering Event: 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 of the payment system, a 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 an error of characterisation that undermines the entire procedure. Under French law, dismissal for gross misconduct presupposes conduct making it impossible to keep the employee within the company. The case law of the Cour de cassation (French Supreme Court) requires the facts to be established and personally attributable to the employee. A mere till discrepancy, without evidence demonstrating a deliberate taking, does not constitute a real and serious cause.

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 managements that reason in management terms (“the shortfall is recorded, the person responsible for the till must answer 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, in the event of a dispute over the grounds for dismissal, the judge forms his conviction in light of the evidence provided by the parties, and that any doubt benefits the employee. In other words, if the employer fails to provide sufficient proof of the materiality and attributability of the theft, the dismissal is held to be without real 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, it is for the employer to prove the misconduct. As the retailer failed to establish that the employee had appropriated the funds, the sanction — the heaviest 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 when assessing whether the alleged breach is — or is not — serious.

Practitioner’s insight: “The classic mistake of the HR director 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 by evidence, not sidestep through suspicion.”

This dimension is directly transposable to French litigation, where impeccable length of service 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, the invalidation of a dismissal may give rise to a right to reinstatement. 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 merely lacking real and serious cause, 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 alleged theft infringes a fundamental freedom — for example, if it is based on unlawful surveillance of the employee — nullity may be incurred, and with it a right to reinstatement. The way in which proof of the theft was collected then becomes decisive.

The Achilles’ Heel: The Lawfulness of the Evidence Collected

This is where the principal blind spot of managements lies. To establish a theft, the employer frequently relies on video surveillance, till records, unannounced checks or witness statements. Yet these means of proof 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 staff representative body), constitutes evidence whose fairness is questionable. The Cour de cassation has developed 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 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 not been brought to the employees’ attention or 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 upstream.

What the Spanish Case Adds to the 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 integrated into every internal investigation.

Concretely, 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 file; ignoring them exposes the employer to a judge, in litigation, raising them of his own motion and shifting the burden of demonstration against the employer.

This rigour of inquiry is not a theoretical precaution: it constitutes the difference between a dismissal that is secure on an evidentiary level and a termination that will be held to be abusive.

Method: Securing a Dismissal for Alleged Theft

For the French employer, before any notification:

1. Establish materiality — gather the elements demonstrating the taking itself, beyond the mere recording 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; 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 — incorporate length of service and the absence of prior incidents into the choice of sanction.
6. Compile a dated and signed file — investigation reports, official records of 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, the 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 taking and its personal attributability to the employee. Failing this, the 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 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 real and serious cause: the judge proposes reinstatement but the employer may refuse it (Article L.1235-3). Reinstatement is only mandatory in the event of nullity, notably if the dismissal is based 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 without prior incident reinforces the requirement of proof 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 value in France?

No, it does not bind French courts. Its interest is comparative: it illustrates a common standard of proof 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 held to be unfair?

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