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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6339
Experience:  15 years experience of advising on employment law matters
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my job was made redundant due to the contract between my employer

Resolved Question:

my job was made redundant due to the contract between my employer and the client being cancelled however they had agreed in pricible to carry out the same duties but with a reduced service meaning i was offered more or less the same job but different days of work and the salary was to be reduced
contract and teerms where not fully agreed but i knew roughly what they would be however i stated that my acceptance to the job offer could only be confirmed when in writing and signed this never happened
i did start the new job but unknown to mwe the continued to pay me at my higher rate for 5 and a half months they then realised and reduced my wages and took reductions without my consent i immediatley handed in my notice as they sent me a contract which was not acceptable to me
they are now taking me to court to recover the money but i have never agreed that i have been overpaid and they never actually signed contract with client until 3 months after i had started job which could have fell through had client not signed contract
can you advise how i stand
Submitted: 3 years ago.
Category: Employment Law
Expert:  taratill replied 3 years ago.
taratill :

Hello my name is ***** ***** I am happy to help you today. Was there a clause in your oriignal contract which allows them to deduct for overpayments?

Customer:

i would say no as i tauped to them from another company

taratill :

Ok but in the pre- tupe contract was there?

Customer:

not that i am aware (trying to find contract ) but i am sure they will argue that i accepted their contract when tauping and that possible with the new job that it is seperate

Customer:

at the moment they are saying i accepted contract verbally so it stands

taratill :

Hi no they cannot argue that, they must rely on an express written clause to deduct pay or your agreement. If it is not there then a deduction is unlawful.

taratill :

Furthermore if you did not realise you were being overpaid you will not have to pay it if you have spent it in good faith. This is due to the law of estoppel.

taratill :

I would suggest you write to them to say you will vigourously defend any claim.

Customer:

i have already been to court and they failed to turn up at proof can you give me 5 mins as my boss has just came in ?

taratill :

yes

Customer:

hi sorry

Customer:

as i was saying they failed to turn up for proof and have since took the case up again with another court and changed the wording of papers

taratill :

Ok well you can still defend this on the basis of what I have said.

Customer:

it is now due to court again the fee being £4031 - £500 that they deducted while i worked my notice so they are suing for £3500 plus expenses through a summary cause case i am also trying to get it dissmissed as around 29% of that money was paid in national insurance at tax to the HMRC so the fee would be less than £3000 so it should be reduced to a small claims case which is for money up to 3000 and i believe you only have to pay a maximium of 10% in the pursuers expenses

Customer:

my worry if its a summary cause is that if i lost i would have to pay all their expenses which could end up more than the fee pursued ?

taratill :

Unless they have contractual proof that it is an overpayment and that they are entitled to deduct it then they cannot win this case. Further more if you defend on the basis that if it was an overpayment you were not aware of it and have spent the money there is no discretion for the court to find in their favour due to the law of the estoppel. Simply put, on the basis of what you have said , I think you will win.

Customer:

the deductions they took would only allow me to get the deductions back from them i really need to have the case found in my favour that there was no overpayment made

taratill :

obvioulsy there is always a small risk but the law on overpayments and the right to deduct and reclaim is clear.

taratill :

Please read what I have typed above. I do not think that they can win on the basis of the facts you have given me.

taratill :

1. They have to prove the overpayment. Without contractual proof they cannot.

taratill :

2. They have to prove they had the right to deduct, without contractual proof they cannot.

taratill :

3. You can defend it on the basis of estoppel in any event.

Customer:

how do i find the rights on reclaim?

taratill :

sorry the estoppel law you mean?

taratill :

http://www.pcs.org.uk/en/resources/legal_toolkit/legal_advice_from_thompsons_solicitors/pay/salary_overpayments.cfm is a summary of a case on this point.

Customer:

yeah i thought maybe rights regarding reclaim if you have been forced to leave they are trying to use the hr lady and the director who spoke with me regarding contract offer that their

Customer:

say so is proof of contract and their lawyer seems very confident that they will win am i on the right track of getting it moved to a small claim which is much more resnable in payback of expenses if found against me ?

taratill :

Yes you can ask the judge to move it.

taratill :

#Their lawyer will act bullish. It is common practice even if they do not have a good case.

Customer:

i have submitted a incidental application for this what do you think my chances of getting it moved due to payments being made to hmrc and national insurance

taratill :

I am sorry but this is more to do with court procedure rules than employment law which was the original question and I do not know the answer to this. If you need to know a specific answer to a question on the CPR rules please can you ask it as a separate question.

taratill :

In the meantime if I have answered your question about employment law and overpayments I would be grateful if you would take the time to rate my answer. I am surprised that the CAB are reusing to help you as they should be willing to.

taratill :

In addition if you have household insurance then it may include legal expenses cover which may be worth looking into.

Customer:

ok thanks for your help i will investigate estoppel law , cab wont help in civil cases, same from acas and other free bodies tried to use solicitor but fees was over £200 a hour

Customer:

thanks again

taratill :

ok you could look at your household insurance as this may include legal expenses cover.

taratill :

All the best with this. I would be grateful if you would take the time to rate my answer and do come back to me in the future if you need to.

Customer:

will do thanks

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