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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48176
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My daughter was told over the phone by HR what her package

Customer Question

My daughter was told over the phone by HR what her package would be when she returned to work after maternity leave. A couple of years later they discovered she had been put on a full time package rather than her 32hrs and demanded the overpayment be returned. She was at this time part way through a VIA which had been audited by the agent. She is now being asked to go full-time and this offer is linked to the debt recovery. Her husband decided to leave her 6 months ago for a younger model. The company she works for is the largest Payroll/Pension outsourcing in the UK and has incorporated several businesses in this field which has had significant implications to staff, especially in computer systems - applications being merged. Several changes in her line managers has meant this has dragged on for about 3 yrs. My grand daughter is now 5, so there is the child-minding to as we live 60 miles away. The sum requested is about £18,000 I think but that's my est as I don't have a figure from her due to missing papers due to the split up. The mortgage is still being met by both and she is just setting up her own bank acct.
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. can you tell me how long she has been employed there please and has a repayment package been put forward to her please.
Customer: replied 2 years ago.

Hello Ben, just got her recollections as she does not have access to her HR file and a sad lack of papers from home. Started Mar 2003. Full time 35hrs. Maternity leave 10/09-07/10. Return on 21hrs 3day. Increase 12/10 until notified of overpayment 12/11 (12mths) approx.£12k. They wanted the full sum but agreed at £100 mth, paid now for 40 mths leaving a balance of about £8k.

Her Line manager ticked her as full time 12/10 on annual budget docs.

HR didn't pick it up. She was told at that time there were bonus payments and other package improvement coming through. She has just discovered she is due payment in lieu for Bank holidays that fall on her nominated work days. these go back 5yrs, she didn't get the email but payment has been stated at 16days. Again they wanted to keep the money against the debt. Sorry it's time for one finger typist.

Edward

Expert:  Ben Jones replied 2 years ago.
Thank you for your response, which I will now review. I 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 2 years ago.
Thanks for your patience, 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. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.

Ben, the additional money was allocated by the agents operation the VIA, just as they did for the compensation gained for PPI on he husbands cards. She did commence driving lessons which was a real change of position as was the focus on a vehicle + insurance. What do you think? Regards Edward

Expert:  Ben Jones replied 2 years ago.
The defence of change of position is not always that easy to prove and what you may believe amounts to that does not necessarily do in the eyes of the law. For example, she may have purchased a vehicle but she has gained an asset so they can still exclude the value of the vehicle from her argument. The IVA would be a stronger argument but again it is not an ‘all or nothing’ situation – they could still be able to recover part of the wages, depending on how much they believe she has changed her position. The issue with these things is that only a court can decide that and make an informed decision so unless this is taken to court by the company all you can do is just rise that argument with them and if it goes to court, it would be entirely down to the judge to decide that.
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Customer: replied 2 years ago.

Thanks Ben, how should she go forward with this (without funds!)

Her husband collected the post in drawers, mostly unopened, they had joint bank acct so neither knew exactly what was going in and some bad decisions were made. I recently got involved with her affairs when helping to sort her place out and found pay slips/P60's, so put them together in a file. She has been putting on a brave face and trying to deal with her own affairs like her sisters (all very independent). Husband going off with an 18yo hasn't helped her confidence but she is trying hard. I hope not to continue taking up your time after this one Ben, thanks again.

Edward

Expert:  Ben Jones replied 2 years ago.
Hello Edward, this matter is not really in your hands at present. You can only raise the above defence if the employer goes ahead and make a claim in court against her. Until then it is a matter of negotiating, raising this as an argument again and hoping that they do not go as far as actually making a claim. In the meantime you could try and agree on a reduced repayment amount if possible but if not then you may have to dig your heels in and just see what happens, remembering that the estoppel defence is something you can only raise formally once she has a claim against her in court.