Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.
Have they made any acknowledgement that you are due holiday pay as well expenses or have they said that you are not owed anything?
OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.
No problem at all
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.
I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. 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
That is the legal position, what more specific advice are you after please?
Ok so as you can see above there are three main factors that allow you to consider relying on estoppel. These are directly from case law on the matter. You have to identify the specific circumstances in your situation and match them to these to try and show the employer why you would be potentially covered under the estoppel principle. However, that is all you can do – no matter how much case law or legal speak you throw at them, there is nothing stopping them from pursuing this further – it is their legal right to challenge this in court if they wanted to. That is why if they do not agree with your interpretation, they can proceed and make a claim in court if they wanted to – you cannot prevent that. You would then have to hope that the court agrees with this being covered by estoppel to avoid any liabilities for repaying this. Does this clarify?