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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I worked as an evening Receptionist for approx one year (Feb

Resolved Question:

I worked as an evening Receptionist for approx one year (Feb 13 to end Feb 14).
During this time, I was offered a part time day position (12 hrs). I did not sign a contract
as a day worker, my line manager never got round to producing a contract for me to sign. After about one month, they said it was not working out and that they were letting me go, as they worked out it was cheaper to have the work undertaken by a call centre. The purpose of this email is, they are now saying that they have overpaid me for my 'day work' for the last three/four months. Am I legally obliged to pay back the money, given that there is nothing in my contract to state this?? Appreciate your advice. Thanks Jane
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Was a specific rate for this work agreed with you?

Customer:

No Be

Customer:

Thank you Ben but nothing was discussed with me.

Ben Jones :

Hello, sorry I was offline by the time you had replied last night. You mention that the arrangement of you working during the day only lasted for one month, yet you then also say you were overpaid for that work for the last 3-4 months? Can you please clarify – does the employer mean that you carried on being paid for the day work after you stopped doing it, or did you actually work in that position for longer? Thanks

Customer:

There is no answer here. Please reply again

Expert:  Ben Jones replied 3 years ago.
Hello I have not provided an answer yet as I am still waiting on a response to my last query above - Can you please clarify – does the employer mean that you carried on being paid for the day work after you stopped doing it, or did you actually work in that position for longer? Thanks
Customer: replied 3 years ago.

Hi Ben, I did not have a contract, nothing re my day hours, pay, holiday pay was in writing.


 


I was paid for the day work after I left the post as a day administrator for 3-4 months, but I still worked as an evening receptionist.


 


As I did not even know what my hourly rate was, it is hard for me to reconcile. I have asked the company for a breakdown. Will I have to pay it back?


 

Customer: replied 3 years ago.

Hi Ben, I have replied. Can you please send your answer to my hotmail account as for some reason i cannot reply to my gmail account. Its [email protected]. To answer again, I do not have a contract for the day work I did, no rate of pay, hours or holiday pay was ever documented/discussed. I was paid for the day work I did about 3-4 months after the role finished, as they said they had to let me go but I could still continue my work in the evening. The day role and evening role were very different. If you need any more info, please email me on hotmail. My question really is do I have to pay this money back? Jane

Expert:  Ben Jones replied 3 years ago.
Thanks for getting back to me. 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.

However, an employee may be able to use the legal defence of ‘estoppel’ to resist an employer's recovery of an overpayment. One of the main cases dealing with this is that of County Council of Avon v Howlett. The employee was a teacher who was paid more sick pay than he was entitled to. The teacher queried the overpayments with the employer but was assured they were correct. By the time the Council had realised their mistake, the teacher had spent most of that money. The Court of Appeal held that the defence of estoppel prevented the employer from recovering the whole sum of the overpayment.

The way estoppel operates is that if the following conditions are satisfied, then an employee should be able to use it as a defence to resist the recovery of an earlier overpayment:
• The overpayments were made due to an error by the employer
• The employee genuinely believed they were entitled to the money, or did not even realise that they were being overpaid (this would be reinforced by the fact you were not issued with a contract, had no idea what you were being paid and generally there was a total lack of communication over this, with you being left in the dark over the payments you received)
• The employee has since 'changed their position', meaning they have spent the money in question. However, this does not mean just spending it on usual items of expenditure, such as bills, everyday spending, etc – you must have gone out of your way and changed your position, such as making additional purchases which you would not have done had you not received that money.

So whilst there is nothing stopping an employer from pursuing a claim to recover an overpayment, if the above conditions are satisfied then an employee could raise the defence of 'estoppel' and prevent the claim for proceeding any further. You need to try and show that the above conditions were satisfied to have any chance of trying to resist any claim by the employer to recover that money, but it is possible if you can.

I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you and feel free to bookmark my profile for future help:


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Customer: replied 3 years ago.

Thank you very much Ben. A great answer! I guess I have to go to a solicitor for an 'estoppel'? If you could please confirm. The points you mention do refer to me, ie no contract, had no idea I as being overpaid, it was the employers fault, I did make a purchase, ie use the funds towards a house move, I would not normally receive that amount, ie over £1000.


 


Regards

Expert:  Ben Jones replied 3 years ago.
With estoppel you do not just go to court to claim that but for example if the employer was going to make a claim against you to try and recover the money then they would go to court and in the process you would raise that as your defence, asking the court to stop the employer's ability to recover it based on that.

If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
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Customer: replied 3 years ago.

Ok, If i get the breakdown from the company and am still not happy should I say that I am taking legal advice and then take the estoppel route? not sure how it works. This is the last question. thanks for all your help!


 


Regards

Expert:  Ben Jones replied 3 years ago.
you don't 'take' the estoppel route as such, it basically depends on the employer taking legal action against you to recover the money they believe you opwe them so once they make the claim you are going to defend it and then use estoppel to prevent the court from awarding them the case. So the employer could try and claim the money from you informally, threaten you, etc but they cannot force you to pay unless they take you to court and win and in the process, once a claim has been made, you would then ask the court to use estoppel as a reason not to pay. Hope this clarifies
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