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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50209
Experience:  Qualified Employment Solicitor
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My husband has worked for a local authority in Scotland over

Customer Question

my husband has worked for a local authority in Scotland over 24 years 5 yers ago he changed jobs as did others ( restructure ) he was told he would not be downgraded or lose any benefits from previous job then 4half years down he was told he owes £18, he & another man has been told after 6 months they should of been another contract to sign as HR never did they continued to recieve salary as before, we have a letter from former manager which states he highlighted this overpayment at every monthly finance meeting still HR never done anything about it until almost one year ago when my husband was due to take early retirement with a £ package HR told him on last FRi in Nov 2015 & gave him until Mon to decide if he retired he was told HR would deduct said overpayment we decided to stay on at work & hopefully get this matter resolved as of today there has been no meetings no letter nothing regarding said matter if he does ask he has been lied to people on hols etc causing delays after one year with this over us causing stress we need answers, He did contact union lawyer was told until something in writing we can;t do nothing.Other men have left who must of been in same position ie job change , overpayments no mention of claiming money back when one of said men is HR managers husband. My husband was told by her she would have debt collectors at our door please can you advise Jean Tweedie
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 1 year ago.

Has the employer actually attempted to make any deductions from his pay?

Customer: replied 1 year ago.
No they have not, since Dec 2015 they have deducted the contractual overtime payment approx £200 per 4 weekly which they HR say he should not of been getting, had he known this he never would of applied for this job ie reduction in salary also affecting his pension
Expert:  Ben Jones replied 1 year ago.

Thank you. A lot will depend on whether these were genuine overpayments, i.e. something which he was not actually entitled to. The company may have omitted to advise him of that at the time and that will work to his advantage but it would also matter what would generally happen in these circumstances, whether others were given a pay reduction and if his was simply an error on their part.

From a legal position, 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. I would be grateful if you could please take a second to leave a positive rating by selecting 3, 4 or 5 stars - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please get back to me on here and I will assist further as best as I can. Thank you

Customer: replied 1 year ago.
thank you for your fast response Ben much appreciated, It does seem unfair to us that this matter was brought to finance meetings every month & highlighted by previous works manager all managers from the top down the line were in attendance & we have letter by him stating this asking for HR to amend this & contact employees involved yet they never did for 4 & years hence said overpayment, is there a time limit they can continue this without further contact with my husband we really need it resolved many thanks Jean Tweedie
Expert:  Ben Jones replied 1 year ago.

there is no legal obligation on them to keep in contact with you about this but they do have 6 years to pursue this through the courts if that is what they want so they will eventually have to make a decision on whether to go further or let it go. Once out of time they cannot take it any further though. Hope this clarifies?

Expert:  Ben Jones replied 1 year ago.

Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.

Expert:  Ben Jones replied 1 year ago.

Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.