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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48742
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been dismissed from my role at work after 21/2 months

Resolved Question:

I have been dismissed from my role at work after 21/2 months as the company i was working to not carry on with the sector of business they employed me for. They have not honoured the notice period in my contract which was 3 months irrespective of service in written form. Due to financial issues as a result i have subsequentely agreed to a months pay which i offered them. they have paid me this said month and also by error a second month as there payroll clerk forgot to take me off the payroll. I contacted them and they have told me they will start proceedings to recover the second months pay. Is there anything i can do?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones : , my name is ***** ***** it is my pleasure to assist you with your question today. Did you know you were overpaid at the time? Do you still have the money in question?
Customer: Yes and yes
Ben Jones :

Apologies slight delay, I experienced some temporary connection issues earlier on. All seems to be resolved now so I can continue with my advice.

You say that they did not pay you 3 months’ notice as per your contract. Did they say why they were unwilling to do so? Did you specifically say that you are prepared to forego this and only receive a month’s pay?

Customer:

Hithere,

Customer:

they weren't going to pay any because they just did not want too.

Customer:

I offered the 1 month out of desperation at the situation they had left me in. They did not reply at first then we=hen i sent a final demand 3 months they jumped at the chance of the one month. And with me being desperate money sadly accepted.

Customer:

purposes I accepted by email. At no point though have I obtained legal advice until now. I have been told by a friend who is an employer that my offer does not stand as it is a change in terms and conditions to the original form of contract and with no legal consultation is should not stand.

Ben Jones :

Thanks . Just to be clear the advice you have received from your friend is incorrect – it is certainly not a requirement to have legal advice before a contract is changed – that can happen at any time and without any prior legal consultation, as long as both parties were agreeable on the new terms and there was an offer by one party with these terms and the other subsequently accepted it. So as far as your case is concerned, whilst initially the employer would have been in breach of contract paying you the contractual notice period due and you would have been able to pursue them notice money, if you had subsequently agreed to accept a reduced amount just to bring the matter to a close then that would have taken precedence.

What your friend may have been referring to is that you cannot waive your rights to certain statutory claims you have against the employer, such as unfair dismissal or discrimination claims, in which case you must obtain legal advice first. However, this is not a statutory claim, it is a contractual one and these can be waived in writing or even orally, simply by the agreement of the parties.

Therefore, working on the assumption that you and the employer had agreed to accept a month’s pay as final settlement, this is what you would both be bound by. If you subsequently received more than what was agreed, it would amount to an overpayment of wages. 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

  • 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 any further.

If you cannot satisfy these requirements, you will have to either consider repaying them, or calling their bluff and seeing how far they are willing to take this, and they may not actually make a formal claim and could simply threaten you with legal action in the hope you voluntarily pay them back.

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

Customer:

Thank you information and help. Much appreciated.

Customer:

I think I will call there bluff and see how far they are willing to take it. Maybee respond with a unfair dismissal claim. I only made the offer out of desperation due to the situation they left me in and

Customer:

Would have liked to receive my notice due.

Customer:

thanks again.

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