Dismissal for Theft in Spain: When and How an Employer Can Act in Cases of Serious Misconduct

Can an employee be dismissed for theft even if acquitted in criminal court?

Yes. Spain’s Supreme Court has confirmed in a recent ruling that disciplinary dismissal for theft can be valid even if the employee is not criminally convicted for the same conduct.

In the case reviewed by the Supreme Court, the employee was found to have taken company goods without paying. While the criminal court acquitted him due to the absence of “intent to profit”—a required element for the crime of theft—the labour court upheld the dismissal, ruling that the employee had seriously breached the duty of good faith under the employment contract.

Legal Basis for Dismissal Due to Theft

The legal foundation is found in Article 54.2 of the Spanish Workers’ Statute, which permits disciplinary dismissal based on a “breach of contractual good faith and abuse of trust.”

Jurisprudence establishes that the monetary value of the stolen item is not the decisive factor. Rather, what matters is the breach of trust in the employment relationship.

Key requirements for lawful dismissal:

• Seriousness and fault of the employee’s conduct.

• Sufficient evidence provided by the employer.

• A clear and detailed written dismissal notice (as per Article 55 of the Workers’ Statute).

• Proportionality: In theft cases, dismissal is generally considered a proportionate disciplinary response.

 

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What Must an Employer Consider Before Dismissing an Employee for Theft?

1. Gather valid evidence
   Video surveillance, witness statements, internal reports—all can be used. The burden of proof lies with the employer, and courts require solid and credible evidence (direct or circumstantial).
2. Draft the dismissal letter carefully
   It must specify what happened, when, and how. A vague or poorly drafted letter may result in the dismissal being declared unfair due to formal defects.
3. Avoid impulsive decisions
   Always seek legal advice before proceeding, especially if there are potential criminal implications or risk of future lawsuits.

For detailed guidance on how to manage such situations, consult our dedicated article on disciplinary dismissals.

What if the Employee Had Been Previously Disciplined?

In this case, the concept of recidivism applies. If the employee has been previously sanctioned for similar misconduct, the employer may impose a more severe penalty, including dismissal.

Requirements to apply recidivism:

• A prior formal sanction for similar conduct.

• The new infraction occurs within 12 months of the previous sanction.

• The misconduct must be of the same nature (e.g., two serious offences).

Recidivism strengthens the employer’s disciplinary authority and may justify dismissal for repeated misconduct, even if no single offence alone would suffice.

Frequently Asked Questions

Is a criminal complaint necessary to dismiss the employee?
No. A disciplinary dismissal can be based solely on the employer’s internal findings and does not require prior criminal proceedings.

What if the employee returns the stolen item?
This may be considered a mitigating factor, but it does not erase the wrongdoing. The employer may still proceed with dismissal.

Can an employee be dismissed without direct evidence?
Yes, provided there is reasonable and consistent circumstantial evidence. Still, the stronger the proof, the better the legal standing of the decision.

What happens if the dismissal is ruled unfair?
The employer must either reinstate the employee or pay compensation, at the company’s discretion.

✅​ At Adlanter, we help you manage dismissals with legal security

Dismissing an employee for theft is a sensitive matter requiring proper evidence, legal form, and compliance. At Adlanter, we provide comprehensive labour law advice, help you reinforce your internal disciplinary policies, and ensure you act with full legal guarantees.