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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50148
Experience:  Qualified Employment Solicitor
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, I handed in my notice to my employer with a leaving

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, I handed in my notice to my employer with a leaving date of 13th Oct 2014. On the 10th oct, (pay day) I was paid a full months salary not a pro rata payment. My contract states that all overpayments have to be repaid, feel put out by this as I gave them enough notice period, it was there mistake. Also on reading contract I find that they state that after 12 weeks probationary period my employment would be confirmed, this never happened at the time, does this give me any grounds not to pay as they did not keep to the contract. Was employed by them . 18mths and I resigned.
Also do not have the full amount to repay if I had to, can I offer them a one off payment of a lesser amount or monthly instalment.
Now will probably end up paying something, but it does rile me.
Ben Jones :

, my name is ***** ***** it is my pleasure to assist you with your question today. Did you know at the time that you were being overpaid?


no, not until they contacted me in nov requesting repayment, at that point told them there figures where wrong which they agreed to and said they would come back with final figure which they have done yesterday

Ben Jones :

ok thanks let me get my response ready please

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. Sadly the issue with the probation will not have any impact on this so you cannot rely on it in the circumstances.

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 any further.

In terms of dealing with this, you will only be forced to repay this if the employer takes you to court and wins. They may decide not to go that far and even if they do then you could try and use estoppel as a defence. So you could try and negotiate with them repayment amount that suits you, reminding them they have to go to court, which will cost money and take time and therefore it would be in the interest of both parties to agree to something that avoids all that.

Hope this clarifies your position? If you could please let me know that would be great, thank you


Yes thanks

Ben Jones :

You are welcome

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