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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48193
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Morning, I have my employment at the end of November to start

Resolved Question:

Morning, I have my employment at the end of November to start a new job. There seems to have been a gremlin in my last employers payroll and they still paid me in December. This has also led to them not submitting my P45 to the tax office.
I have told them of the oversight but I thinking it was a bonus (which was due but not paid) have spent the bulk of the money.
They have acknowledged the error but they want full payment immediately. I have offered to pay them without interest over six months. Am i within my legal rights to insist on this... either direct debits or six cheques?
Please let me know here I stand...
Thank you
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Have they said they will take you to court over this if you do not pay? How much do you owe them?

Customer:

Hi, no they have just sent a letter saying sorry but I owe £2921.03 and can I please pay it in full within ten days... have not mentioned court..

Ben Jones :

ok thanks let me get my response ready please

Customer:

Thank you, ***** ***** as you can if possible...

Ben Jones :

won't be long

Ben Jones :

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.

As far as the payments are concerned, the employer cannot yet force you to pay them in one lump sum – they have to take you to court first, win their case and get judgment in their favour. That will take a few months anyway so they won’t get anything in the meantime unless you decide to pay them. So you could make them aware that whilst you agree you owe them the money (unless you can show estoppel), you cannot afford to make a one off payment and will only be able to make periodic payments and even if they disagree with that and take you to court, there would be no quick fix and they can just end up spending more money on getting the same outcome.

Customer:

Thank you that is what I needed to know....

Customer:

Certainly one of the conditions of estoppel are true as in their error... I am agreeing to pay them back as it is not my money but I want it on my terms...

Customer:

Also I did think it was my bonus....

Customer:

So should I write to them with my offer ?

Customer:

Hi, is this conversation over now?

Ben Jones :

yes that would be the first step - make it clear that this was due to their error and that as the money has been spent you cannot afford a one off payment and set out your proposal. No need to say anything else until they make their next intentions clear

Customer:

Ok thank you

Ben Jones :

you are welcome

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