Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.
Has the employer actually attempted to make any deductions from his pay?
Thank you. A lot will depend on whether these were genuine overpayments, i.e. something which he was not actually entitled to. The company may have omitted to advise him of that at the time and that will work to his advantage but it would also matter what would generally happen in these circumstances, whether others were given a pay reduction and if his was simply an error on their part.
From a legal position, 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.
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there is no legal obligation on them to keep in contact with you about this but they do have 6 years to pursue this through the courts if that is what they want so they will eventually have to make a decision on whether to go further or let it go. Once out of time they cannot take it any further though. Hope this clarifies?
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