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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44961
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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there, I have an issue with my employer who has delayed

Customer Question

Hi there,
I have an issue with my employer who has delayed reverting my salary to my current position following return from a secondment decondment post where the salary was slightly higher than my current one. The reduction in pay has now happened-from my December pay and will continue to be deducted until March pay date. I had very little communication about it and they didn't explore the reason it remained at the higher rate as per my understanding. There has been changes in leadership my previous line manager cannot recall the conversation!
The understanding was that I continued to do some of the work that I had been doing on secondment as it was a business crucial need. I took initiative to develop the business and also undertook tasks that were given to me by my line manager. However, I have now been told that this is an expectation of my current role anyway and so the decision to reduce my pay and take the overpayment back stands.
Please can someone advise me on what to do next as I feel communication has been appauling, it has meant that there is an overpayment to pay back and I feel I have done the work given my understanding if the situation.
Many thanks
Wendy Lee
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Firstly can you tell me how long you have been with your employer please.

JACUSTOMER-5p2dkvcf- :

Hi Ben, thanks for your help, I Tupe'd in to the organisation in April 2012. My job was then deleted and I had to apply for another equivalent role for which I was successful. I continued in this role until January 2014 when I took up a secondement and returned in June to my substantive role but in a different area as there had been a resignation and they had to replace asap because it would have meant the contract would be under threat.

JACUSTOMER-5p2dkvcf- :

Hi Ben, I wasn't sure when to pay, so I paid last night though the website. I answered your initial query so look forward to hearing from you with any info and also if you have any further questions.

JACUSTOMER-5p2dkvcf- :

Many thanks, Wendy :)

JACUSTOMER-5p2dkvcf- :

Hi Ben,

JACUSTOMER-5p2dkvcf- :

I'm having some technical diffiiculties i think as I can only see your initial question asking how long I had been employed. Please can you send me your answer again, so I can rate and get you your fee.

JACUSTOMER-5p2dkvcf- :

Many thanks

JACUSTOMER-5p2dkvcf- :

Wendy

Ben Jones :

Hi Wendy, apologies for not getting back to you sooner – I was offline by the time you replied and then have been tied up in a tribunal the last couple of days so have only just come back online. Also any emails you may have received would have been sent automatically so I am sorry if you felt pestered, I really have no control over what the system sends you in the meantime.

Anyway, going back to your original query, the key is whether there was a formal agreement or understanding that you were only being paid the higher amount in your secondment role and that the reduction would have been implemented as soon as you returned to your substantive post. It is possible for an employer to overpay an employee, something which usually happens accidentally for example due to an admin or payroll error, but as far as the law stands 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.

The Employment Rights Act 1996 allows employers to deduct any overpayment of wages from an employee’s pay without their prior consent, although they should act fairly and ensue the deductions are reasonable so as not to leave the employee in obvious financial difficulties.

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

  • 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 deducting an overpayment, if the above conditions are satisfied then an employee could raise the defence of 'estoppel'. In any event, you can take the matter further by raising a formal grievance as that is the accepted method of dealing with such workplace issues.

Hope this clarifies your position? If you could please let me know that would be great, thank you


JACUSTOMER-5p2dkvcf- : Thanks Ben,
JACUSTOMER-5p2dkvcf- : thanks Ben
JACUSTOMER-5p2dkvcf- : Thanks Ben, there was no formal agreement. I asked to stay at my higher rate if I took additional work. My manager have me the work without formalising the terms. Not sure which condition I could work with in my situation? Best wishes, Wendy
JACUSTOMER-5p2dkvcf- : Sorry Ben, I have just re-read your reply. Do I have to satisfy all three conditions? I can demonstrate the first two, however, could the change constitute a change of personal circumstances as I have had to take on all my commitments rather than just my portion of the family commitments? Thanks for your help, best wishes, Wendy
Ben Jones :

Hi, yes you do have to satisfy all three conditions and often the last one can be the most difficult one. We are talking about spending which you would not have had to make or been able to make had you not had the extra money, and that does not include bills that would have had to be paid anyway, so we are looking at additional holidays, 'extravagant' purchases and so on

Ben Jones :

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? Thanks

JACUSTOMER-5p2dkvcf- : Thank you, I'll have a think in that. Thanks very much for your help. I will go ahead and rate. Best wishes, Wendy
Ben Jones : You are welcome, all the best
JACUSTOMER-5p2dkvcf- :

HI Ben, just one last clarification, to apply Estoppel, would I have to go to court and obtain something, or do I just write to my employer saying I wish to apply it.

JACUSTOMER-5p2dkvcf- :

Many thanks, Wendy

Ben Jones :

Hi Wendy, estoppel would initially be a defence you raise directly with the employer. However, if they were to take the money from your wages anyway then you have to consider whether to make a claim to try and recover it from the tribunal or the courts and that is when you would argue estoppel as a reason to try and reclaim that. Similarly, if the employer was to try and take you to court to recover the money they believe you owe them you would raise estoppel as a defence.

Ben Jones :

Hope this clarifies your follow up query?

Ben Jones :

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? Thanks

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