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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?
they weren't going to pay any because they just did not want too.
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.
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.
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:
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
Thank you information and help. Much appreciated.
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
Would have liked to receive my notice due.