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Jenny
Jenny, Solicitor
Category: Law
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Experience:  Qualified Solicitor specialising in Employment Law and general legal matters. Please start your question For Jenny Only
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I am self employed but contracted out to perform dentistry.

Resolved Question:

I am self employed but contracted out to perform dentistry. In my contract it states:
After the end of any Contract Year, the Company will update the statement referred to in Clause 25.6 above based on BSA data, once this is available. If that statement shows any overpayments which have not already been deducted or repaid, the Company will notify the Associate of any further deductions or repayments required under Clauses 25.6(a) or (b) respectively and the Associate agrees that:
(a) any deductions may be made from any Retention or any further payments due to the Associate by the Company; or
(b) if no Retention or further payments are due to the Associate, or if the Retention or payments to be made do not cover the outstanding overpayments, the Associate will immediately pay to the Company as a debt any amounts representing overpayments;
and if the updated statement shows that any further sums are due to the Associate from the Company, the Company will make those payments as soon as reasonably practicable.
No further sums will be due from the Associate in respect of overpayments which arise solely from the Company’s failure to provide correct information to the BSA, provided that the Associate has supplied such correct information to the Company in accordance with Clause 8.2 above
I have been over paid due to continually for 3 months after leaving being paid. The part that makes me question whether i need to give it back or not is the final section stating no further sums etc. I left the company in June 2015, last payment was October 2015 and currently no on has phoned, emailed or wrote to me for the money back, this is a big corporate dental business with around 2000 practices. Have they written the money off due to it being an error on their part or are they waiting till the new financial year to chase it up? I have not spent a penny of it but don't know where i stand legally with it. Thank you.
Submitted: 12 months ago.
Category: Law
Expert:  Jenny replied 12 months ago.
Hello my name is ***** ***** I am happy to help you today. What is the value of the overpayment?
Customer: replied 12 months ago.
Approx £22,250, which is based over 4 months of payments, my pay each month was not target based like most dentists, but hourly based, so essentially i was paid a salary but still classed as self employed, so the figures are almost the same each month. Before i left the practice i had to fill in a handwritten form so the practice knew where i was going and so they could inform the BSA. This was not done by the practice manager.
Expert:  Jenny replied 12 months ago.
Are you saying that this overpayment has nothing to do with the BSA calculation?
Customer: replied 12 months ago.
I'm saying the information given to the BSA was either wrong or late by my previous place of work, which is why i was still receiving money from them, as the company essentially didn't know i had left, through fault of the practice manager.Which i feel would come under: No further sums will be due from the Associate in respect of overpayments which arise solely from the Company’s failure to provide correct information to the BSA, provided that the Associate has supplied such correct information to the Company. As i had provided correct information to them before i left, for the BSA to switch my pension etc to the new practice but failure on the practice managers side meant there was a failure to provide correct information to the BSA from the company. At least that is how i see it.
Expert:  Jenny replied 12 months ago.
Yes it's interesting. the basic (normal position) on overpayments are that they are repayable unless the person who was made the overpayment was unaware of it and spent the money in good faith. This obviously would not apply to the situation you are in. Simply put in the normal run of things the employer could ask for the money back at any point (subject to the law on limitation periods) and you would have to repay it. You can in your case seek to defend on the basis of this rather odd clause so long as you have supplied the correct information. On the basis of what you say in that case you would have a contractual right to retain the overpayment. I am not sure that I would rush to spend the money at this stage but maybe wait to see what happens and if they do seek to reclaim it. If they do you should tell them you intend to defend on the basis of the clause and hopefully it will be dropped. I obviously can't tell you if they have written the money off as I'm not privvy to that information. You could ask them but that would, of course, highlight the problem. Is there anything further you would like to know?
Customer: replied 12 months ago.
Thank you for your responses. I haven't spent any of it as i was sure i would have to give it all back and morally i know that would be the right thing to do. When i looked at the contract however, that clause does seem to state my situation. My concern would be the information i gave them before i left was info i hand wrote onto a form they printed off. Now it is my belief they lost that piece of paper but at the end of the day that isn't my problem. However with it being hand written i have no proof it was done in good time - i.e. their fault. It would be my word against theirs that i wrote it. Where do i stand on that? Thank you.
Customer: replied 12 months ago.
Also is there a time limit on when they can claim the money back or can they claim back in 5, 10, 20 years?
Customer: replied 12 months ago.
The reason i ask is, i will soon have to pay tax on it as i would need to declare it part of my income for the current financial year we are in. If i were to declare it and pay tax on it, but they subsequently claimed it back, i would be left having to pay more back than i have, unless i can claim it back from HMRC?
Expert:  Jenny replied 12 months ago.
Hi if you cannot prove that you wrote the information then it would come down to whose version of events the judge prefers. It would come down to oral evidence and if there were any witnesses to the fact you wrote this and whether they would be prepared to lie on oath. The time limit on bringing a claim is 6 years. If you have any further questions please ask. Otherwise please remember to rate my answer before leaving the site as I will not otherwise be paid for the time I have spent working on your questions. Thank you and all the best.
Expert:  Jenny replied 12 months ago.
If you make an overpayment of tax you would be able to reclaim it is you had to pay it back.
Expert:  Jenny replied 12 months ago.
Hello Andy is there anything further you would like to know?
Jenny, Solicitor
Category: Law
Satisfied Customers: 6305
Experience: Qualified Solicitor specialising in Employment Law and general legal matters. Please start your question For Jenny Only
Jenny and 2 other Law Specialists are ready to help you
Customer: replied 12 months ago.
Hi sorry for late reply. I wouldn't be prepared to lie under oath, but in this case it wouldn't be lying as they genuinely did give me the required forms. I believe there were witnesses to the fact. Thank you for your help.
Expert:  Jenny replied 12 months ago.
No problem, all the best with this and thanks for the rating.

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