Thanks for your patience. As far as the overpayment is concerned, if someone has genuinely been overpaid by their employer, then that is not money to which they are legally entitled and it should be repaid. Of course it is rare that the employee will be at fault for this so it is understandable that if you are financially affected by this it would be stressful and upsetting.
The law does allow an employer to recover genuine overpayments from the employee’s wages, without their consent. However, at the same time they need to act fairly and reasonably and within the implied term of trust and confidence, which exists in every employment contract. That does mean, for example, that if the deductions will leave you in financial peril, the employer should consider reducing these so that you are not left with an unreasonable amount to live on, especially if this was their fault.
In terms of stopping this from happening, it may not be easy unfortunately. You cannot prevent the employer from deducting the money in the first place – your rights are really there to pursue the employer if they go ahead and do that. For example, it could allow you to resign and claim for constructive dismissal, as well as a potential disability discrimination claim. At this stage, these are really the only options, short of pursuing the matter internally, such as through a grievance. Of course, continue trying to discuss this with the employer and to reach an agreement, remind them that this was their fault that you should not be forced to suffer financially as a result and that as a reasonable employer that is required to act within the implied term of trust and confidence, they should consider reducing the deductions and agreeing to a periodic repayment.
Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?
Can I ask if you have received my last correspondence. Thanks Yvonne
Ben, can you just look at my last corresponsdence, then I will rate you.
I will look forward to hearing from you.
Many thanks Yvonne
Hello, sorry the system had not advised me that you had replied in the 20th, apologies for that. Also I have no control over the emails you are receiving as they are sent automatically by the site so don’t think I am personally pestering you …
Just to be clear what specific questions would you like me to deal with now so I can direct my advice more appropriately?
Hello Yvonne, when it comes to potential constructive dismissal it would occur when the following two elements are present:
A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).
The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away.
If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.
Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.
An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.
Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort.