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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 62530
Experience:  Qualified Employment Solicitor
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Customer Question

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Assistant: Was this discussed with a manager or HR? Or with a lawyer?
Customer: Hello
Assistant: Hi. How can I help?
Customer: I have been overpaid by my ex employer. This was due to an error on their part. I tried to negotiate repayment by instalments was in progress when they decided to take court action. I received court papers today
Assistant: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: Yes
Assistant: Anything else you want the Lawyer to know before I connect you?
Customer: I am a pensioner and supplement my income with temporary assignments as my pension is not enough. Although I was agreeable to £200 over a 2 year period I was trying to explain that it was on the basis that I was in employment. They refused to add this proviso and I was concerned that I such a a situation I would default the agreement. As I do not have an extra income I am in financial difficulties. But they have proceeded court action
Submitted: 11 days ago.
Category: Employment Law
Expert:  Ben Jones replied 11 days ago.

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.

Expert:  Ben Jones replied 11 days ago.

What do you specifically want to know about this, please? Please note I am mobile at present so may not be able to reply immediately, thanks

Expert:  Ben Jones replied 10 days ago.

Hello, I am not sure if you saw my query above: What do you specifically want to know about this, please?

Customer: replied 7 days ago.
What is my best course of action
Expert:  Ben Jones replied 7 days ago.

Thank you. 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.

 

Alternatively, you can advise them that proceeding with the claim will not get them the money sooner as if you cannot afford it you cannot afford it and there is little you can do to get the money. You would also ask the court to consider your financial position and make a decision based on that.

 

Does this answer your query?

Expert:  Ben Jones replied 6 days ago.

Hello, I see you have read my response to your query. Could you please let me know if it has answered your original question? You can simply reply on here with a quick ‘Yes, thanks’ and I won’t bother you again. Thank you

Expert:  Ben Jones replied 5 days ago.

Hello, not sure if you are having trouble seeing my posts? I have not heard back from you since posting my answer and just need to know if your query has been resolved. If you could please post a quick reply to confirm I would be very grateful. Thank you