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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50199
Experience:  Qualified Solicitor
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I have been working in NHS as a doctor for 11 years,

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Dear Sir, I have been working in NHS as a doctor for 11 years, retiring next month.
When asking if my retirement pack has been sent to the Pension office the HR and Payroll suddenly have found out I have been overpaid for several years without noticing from either side despite I have asked for revision of my salary one year ago. The sum is substantial and both offices (PR and HR) are now implementing a stress on me. What right do I have?

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

Was this an overpayment of salary or pension?

Customer: replied 1 year ago.
Salary - when the Payroll offices moved to the third party, somebody has done a mistake and put me on 12.5 PAS instead my 10.25. Nobody has noticed for more than 2 years. Either me - I have been working plenty of overtimes, the payslip is coded, never ever did occurred to me something is not correct. The mistake was found out when I have applied for the pension pack; and probably just one week ago. My pension shell start 1.10.2016. One year ago I have asked for revision of my salary (my 8 years of consultancy has not been recognised) but this was dismissed without any reason. Not even at that time anybody has found out ...

Thank you. 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.

This is your basic legal position. I have more detailed advice for you in terms of your position should the employer go ahead and take this to court, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Customer: replied 1 year ago.
Thank you Ben,
I fullfil all three conditions of estoppel - on my account is only a sum which I was prepared to transfer to my SASS pension pot next week (can I still do it without raising suspicion of clearing my account?). Both offices are now calling me almost every day putting me under the pressure and transcripting everything I say. Can I just stop to talk to them with only proposal of written correspondence? I feel much safer - do not want to agree or say anything what I would later regred. They call usually during very inconvenient times.

You may of course refuse to talk to them and only proceed in writing. No one can force you to talk to them and you can just ignore their calls and continue corresponding only in writing

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