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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45343
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have recently come off gardening leave from my work and my

Resolved Question:

I have recently come off gardening leave from my work and my final pay was meant to be my outstanding holiday paid on the 28th.
I never got paid - when I queried they said they would look into it, and got back to me saying I wasnt owed any
On tuesday the 1st I received a payslip which said final holiday pay = £8300 which was about £4700 after tax etc..
This is a lot more than i was owed. and i assumed it include any bonuses since the beginning of financial year
They are now requesting re-payment - Is this something they can enforce? as I no longer work for them
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. Do you agree you have actually been overpaid?
Customer: replied 1 year ago.
well I dont know as If it includes bonuses since April on pro-rata basis? also not sure how the calculated my holiday as around 13 days I am owed . they are saying im only owed 1 day?
Customer: replied 1 year ago.
they are telling me it should only have been around £200
Expert:  Ben Jones replied 1 year ago.
Thank you for your response. I will review the relevant information and will get back to you as soon as possible. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you
Expert:  Ben Jones replied 1 year ago.
Many thanks for your patience. The key here is whether you have actually been overpaid. Just because you have received a sum of money from them does not mean you can keep it if it was not something which you were legally entitled to. So in the first instance you may wish to seek a breakdown from them of what you were due to receive, how it was calculated and what you were paid instead. That could identify where you stand with what you have been paid and compare it to what you should have been paid.
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.
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 for proceeding any further. If the above do not apply then the employer can sue you and will likely succeed in recovering the overpayment from you.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45343
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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