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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44958
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I went on maternity leave in March 2012 and as per the letter

Resolved Question:

I went on maternity leave in March 2012 and as per the letter from my company I was paid normal SMP for week 1 - 26 full pay, SMP at a reduced rate from weeks 27 - 30 and unpaid from week 40 - 52 unpaid. During this maternity leave I became pregnant with my second child and therefore never returned to work.

The company paid me again at the normal SMP for the following 6 weeks and then stopped. When I contacted them to find out why my pay has stopped they advised that because I hadn't work a set amount of hours as part of the Keep In Touch days I was not entitled to maternity pay for my second child.

Again in September at the point of what would have been week 26 they started to pay me again.

They are now claiming that I owe them nearly £4k.

Sadly the situation is now further complicated by the fact that I was diagnosed with terminal cancer in January and am now unlikely to return to work at all.

Do I have any rights over the company with regards XXXXX XXXXX to pay this money back as I have never received any formal communication from them about the the maternity pay for my second child and therefore unknowingly assumed that the pay I received was genuine and therefore used it.

Please can you advise on if I can legally refuse to pay the overpayment and if so on what grounds?
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Just to clarify were you being paid just the minimum statutory entitlement to maternity pay or was it an enhanced company maternity pay?

Customer:

It was full pay for the first 6 months and then reduced, would that be enhanced?

Ben Jones :

Yes if you received full pay for 6 months it would be. SMP is 90% for the first 6 weeks then it reduces significantly for the remaining 33 weeks. Have yo checked the specific workplace policies that deal with your maternity pay entitlement and what conditions were applicable for receiving it?

Customer:

I sent my request for maternity leave of my second son on 23/11/2012 that I wished to begin maternity leave on 18/03/2013. Therefore my maternity leave would have been continuous from 17/03/2012.

Ben Jones :

But in terms of their reasons to deny you this pay, have you checked if these apply or are contained in a specific policy

Customer:

Where should I look for that within the contract?

Ben Jones :

well obviously any maternity benefits section would be a good start, it depend how it is drafted though, a quick scan may give you an idea of where it could be

Customer:

There is a note which says if an employees average earning in the eight weeks prior to the start of the maternity leave are below the lower earnings limit for NI contribution they will not qualify got an statutory pay??

Ben Jones :

this is just in relation to SMP but you were receiving company maternity pay, which is more than SMP

Customer:

not for my second child, I was apparently not entitled.

Ben Jones :

ok let me try and clarify part of this then we can see if that helps

Ben Jones :

When an employee goes on maternity leave, they will be entitled either to Statutory Maternity Pay (the minimum payable by law), or company maternity pay (CMP) – which is SMP, plus an additional enhancement pad by the employer.


 


Your entitlement to SMP depends on certain criteria defined in law – as long as you meet them you get paid SMP. On the other hand, CMP depends on criteria defined by the employer, either in your contract or a relevant workplace policy. It would be based on minimum service, seniority, past performance, etc. You could also be required to stay with this employer for a minimum period of tie after return from maternity leave or you could be forced to repay these additional payments.


 


Instead of me trying to summarise the requirements for SMP and consecutive pregnancies you should read this document – it is a very good and detailed summary:


 


http://www.maternityaction.org.uk/sitebuildercontent/sitebuilderfiles/pregnantonmaternityleave.pdf


 


So when it comes to your second period of ML, your entitlement to SMP would depend entirely on whether you meet the legally-defined criteria. On the other hand, your entitlement to CMP would depend on the criteria defined by the employer – as mentioned it would be in your contract or policies at work. You need to check these to be certain on what you were entitled to and what you could expect.


 


Depending on these conditions, 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


 


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.

Customer:

So in my case all three of the conditions of estoppal apply, do I just write to them and state that I wish to challenge the overpayments and do not give them permission to take the overpayments based on estoppel?

Ben Jones :

yes you can do so, but it would not stop them from deducting them from your pay if they wanted to. That then means you will have to pursue the matter further trough the tribunal or courts and raise that defence there so that your employer is potentially asked to return the money if estoppel is found to apply

Customer:

okay thank you for your help so far.

Ben Jones :

Yo are welcome, please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44958
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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