Table of Contents
- Intro
- Theft and misappropriation at work: differences
- What the prosecution has to prove
- Descuadres, mermas and errors: alternative explanations
- The report of the private detective
- The contradictions of the company and the recordings
- Real case
- Summary: defence arguments
- Frequently asked questions
- Conclusion
1. Introduction
That a company accuses a worker of taking money or goods is one of the most serious situations a person can live in his or her employment: in addition to losing work, he or she can face prison requests. But an accusation is not a conviction. In criminal proceedings, it is the company that has to demonstrate what is missing, how much and why it should be attributed precisely to that worker. When he doesn't, the defense has a lot of room.
2. Theft and misappropriation at work: differences
These are the two offences most often charged to workers, and are often jointly charged:
- Hurt (article 234 of the Criminal Code): to take other property without the will of its owner, for example, to take goods from the warehouse.
- Insufficient liability (art. 253 of the Criminal Code): to keep money or goods that have been legitimately received to deliver or administer them, such as the collection to customers or the goods that a dealer must deliver.
When several repeated events are attributed over time, the prosecution often qualifies them as continued crime (art. 74 of the Criminal Code), which increases the penalty.
3. What the prosecution has to prove
In the criminal proceedings the presumption of innocence (article 24.2 of the Constitution): the accused does not have to prove that nothing was taken. It is the prosecution that has to prove, with specific evidence, what amounts are missing, what dates and why they should be attributed to the accused and not to another person or to another cause.
The amount is decisive. The Criminal Code provides for much lighter treatment when it is removed or appropriate not to exceed EUR 400, with exceptions. That is why an accusation that speaks of large amounts but only makes a few hundred euros more powerful. If you are interested in how the amount of this type of crime affects you, see our article on when a robbery «minor» can end up in prison.
4. Descuadres, mermas and errors: alternative explanations
A difference between what was given to the worker and what was finally billed does not, on its own, prove that there has been an offence. These differences may be due to a wide range of causes:
- Mermas: goods damaged, expired or damaged during transport that can no longer be sold.
- Accounting errors or registration on albarans and invoices.
- Shared responsibilities:: other persons involved in the load chain, delivery or collection.
If the prosecution does not rule out these explanations, there is a reasonable doubt that must favour the accused.
5. The report of the private detective
Many companies provide a report from a private detective to support the prosecution. That report is not a final evidence: the detective must testify at the trial as a witness, and the court values what he actually observed. If the report does not include a follow-up to the accused worker, or does not contain any specific facts that involve him, his evidentiary value against him is very limited.
6. The contradictions of the company and the recordings
The conduct of the company itself can dismount its accusation. If he really believed that the worker was stealing from him, it is unlikely that he would propose to continue working for her, for example by asking him to leave voluntarily to sign a new contract.
The recordings of these conversations, provided that the worker has participated in them, can be provided as evidence. We explain when they are valid in our article about record work conversations as evidence.
7. Real case
The video explains the case of a bread dealer for whom 18 months of imprisonment are requested for an offence of continued theft and another 18 months for an offence of continued misappropriation. After his dismissal, the company had recognized the inorigin, paid him EUR 19,950 and renounced the criminal proceedings in an agreement approved by the social judge. We tell you that first part of the story in our article on the false charge of theft at work.
In the statement of defence, in addition to demanding that this agreement be respected, it is shown that the company proposed that you submit the voluntary leave and then sign a new contract, something incompatible with believing that you were stealing, and the client recorded it. The company does not specify the differences in money that it assigns to it, the private research report does not follow up on our client, and the disappointments can be due to miseries, such as the boxes of bread that are wet and can no longer be sold, or to accounting errors. The amount that could finally be attributed to it is not even 600 euros, and the prosecution mentions it in passing, without showing it.
8. Summary: defence arguments
| Argument | What it brings to the defence | Foundation |
|---|---|---|
| Presumption of innocence | The prosecution must prove specific amounts and their attribution | Article 24.2 of the Constitution |
| Amount | Under 400 euros, criminal treatment is much lighter, with exceptions | Arts. 234 and 253 of the Criminal Code |
| Mermas and errors | Discards may have causes other than the worker | Analysis of documentation |
| Detective report | Just prove what the detective observed directly. | Statement in trial as a witness |
| Contradictions of the company | Offering a new contract is incompatible with suspected theft | Recording of the talks |
9. Frequently asked questions
What do I do if my company accuses me of theft?
Don't say anything or sign anything without advice. Collect all possible documentation (albarans, messages, recordings in which you participate) and seek a criminal lawyer as soon as possible.
Is it enough for me to lack money or merchandise to convict me?
No. The prosecution must prove what is missing, how much and what is attributable to you. Differences may be due to misgivings, errors or other people.
What's the difference between theft and misappropriation?
The theft takes something foreign without permission; the misappropriation retains something that had been received legitimately, such as the money charged to a client.
You serve a private detective report to convict me?
Only to the extent that the detective has observed specific facts involving you and ratifying them in the trial. A generic report that doesn't follow you has little value.
10. Conclusion
A charge of theft or misappropriation at work must be supported by concrete evidence. When the company does not specify the amounts, it provides reports that do not involve the worker and, in addition, is in contradiction with its own conduct, the defence has solid arguments to combat it.
In the area of Criminal law de Leynver Abogados defend workers accused by their company, combining work and criminal vision to protect their rights with maximum guarantees.
