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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 61718
Experience:  Qualified Employment Solicitor
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I retired in 2917 following a lengthy period on sick leave

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I retired in 2917 following a lengthy period on sick leave following a diabetic seizure. Earlier this year my employer (Ministry of Justice) contacted me to say that they had overpaid my sickness pay due to the introduction of new procedures. I had suspected they had overpaid me at the time and queried it, but they insisted there was no problem. Now, two years after my retirement (when I am less able to meet the expense) they are demanding repayment and threatening legal action. Where do I stand? Thanks
Assistant: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: I don’t have a manager or HR as I’ve retired. I haven’t approached a lawyer as yet
Assistant: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Retired. Was a member of a union prior to retirement
Assistant: Anything else you want the Lawyer to know before I connect you?
Customer: No

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

Are they wanting you to pay it back as a single payment?

Customer: replied 7 days ago.
They’ve also sent me a means form

So are they wanting you to pay it back as a single payment?

Customer: replied 7 days ago.
I presume the means form is to determine how much I can repay on monthly terms

Thank you. I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Many thanks for your patience. If someone has genuinely been overpaid at work, the employer may rely on the common law remedy of restitution based on a mistake of law or fact to recover the overpayment in the civil courts. Restitution attempts to prevent the unjust enrichment of the worker at the expense of the employer.

 

If a claim for recovery is made by the employer, the employee may be able to use the legal defence of ‘estoppel’ to resist it. The case of County Council of Avon v Howlett dealt with this issue and identified three conditions that must be met for estoppel to succeed:

  • 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. It would not include turning a blind eye when they knew 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 rent, mortgage, bills, everyday spending, etc – there must have been a significant, precise or substantial change of position.

 

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' in court and potentially resist the employer’s claim. Otherwise, you may have to simply try and agree a repayment plan with them to pay it back over time, at a rate affordable to you.

 

Does this answer your query?

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 7 days ago.
Thanks Ben that’s very helpful

All the best