Employer went into my account to 'reclaim' overpayment

Jariya

I hope this doesn't come out scruffy! My responses will be in bold type.

Below quote by Naf

Originally Posted by My e-mail to HR
I am expecting letters from you regarding the matters contained herein, but they need addressing more urgently than waiting for your second class post to arrive (incidentally, nothing has arrived yet). On the 4th July I finished my employment with Santander, and as such anticipated my final wage to be paid around the 19th.You were aware that payments were made on 19th - just to clarify - however - yeah a payment a few days prior to that..I'd have thought the same and that it was valid too I did not know how much I was expecting; In all honesty you could have checked and chased them for this- they would have known by about 13th what you would be getting - an bearing in mind this was an earlier payment - but you wouldn't know that - at the end of the day - or a job it's always a good idea to nag them and check what is due to you - make sure to check in future - I haven't and have had shocks myself - I always check now! Always!not being certain how the pay periods were structured, knowing there could be up about £400 in a service bonus plus not knowing what holidays I had taken..this may sound an odd question but how would you not know what hols had been taken?; so when on the 16th £808.50 went into my account I, naturally, took this as my final wage – it was not the usual monthly wage I had received before so, clearly, had been calculated and I trusted it was correct. I therefore repaid the payday loan I had outstanding of £500 as well as making other extra payments to bills and buying household groceries. OK..big warning for the future here..never ever pay out on funds you are not TOTALLY sure of. I would have queried why the sum was £808 and not £940..I know this doesn't help you right now..and I am sorry for that :0( I wouldn't even be here posting if I didn't give a fig about how awful this is for you..but..payments to you..they have to be your responsibility to check..it's your money..it's important and crucial to you..please check in future..I check every single salary payment of mine matches my payslip - mistakes can happen way too easilyThen, on the 18th (in the afternoon) you entered my account without my permissionThey didn't enter your account actually - it was a recall for an error (which they made admittedly) but if you had been working for I dunno Tesco and Tesco had made an error they would have been perfectly entitled to do the same thing with the funds - honest!, and without contacting me in any way,This is not good at all - they should have - this is why I suggested in an earlier post to get a half hour freebie with en employment law solicitor - they might be able to do something with this part - I'm not sure - worth a try! SERIOUSLY!!! and took the full £808.50 from my account, leaving me £675 over my agreed overdraft Tough stuff - this isn't your ex-employers problemwith no access to any money to pay rent, other bills or to buy food and other basics for my family. Again - not their problemIn addition, any of my state benefits which get paid into this account (although I have done my best to change them, my £520 in tax Credits and £230 in Housing Benefit have probably not been changed soon enough) will be completely inaccessible and therefore this will cause further difficulties both this month and next. None of this is your ex-employers problem...........however..I'd have some the same probably and written that to them in the hope there was a bit of kindness that may come back - thing is..employers who are ex-employers don't throw out sympathy..it's just business to them..and someone who has left the company is way down on the sympathy list - harsh - but that is life I'm afraidI immediately contacted you regarding this, and had the error explained to me so I understand what has happened, and that this money was not owed to me, this is pretty important - but..and I am wincing as I type because I don't know what I would do in your situ - but I have to be honest as you will get nowhere if I am just nice..you understand what happened and went wrong and you have admitted that to them - it wouldn't get you any further if you hadn't - the outcome and where you are at right now would still be as it is.and would have been happy to arrange to pay it back. when you have left a company have you thought - oh I took a pen home - I must give it back to them? I have a jotter pad - it's actually theirs..I will return that once I leave - no - they have the same view of an ex-employee - only difference is if severance or commissions is involved - but all that is per original contract and circumstances of leaving a companyBut the error was on your part, not mine,Yes - speak to a solicitor in emp law and I am the one now left paying for it.your ex employer has no responsibility for this - except for they didn't say they were recalling - solicitor chat - and yes I keep saying this because you should I attempted to discuss this with you, including the fact that you have no right nor business entering my bank account without my prior consent, they didn'tnor without contacting me first. yes they should haveThe best offer I received was that my charges would be paid for me;that is very generous in all honesty whilst I appreciate this, it doesn't help me with being able to cover basic living expenses this month, and probably into next month. not their issueIn addition the charges are £5 per day capped at 20 days per month (i.e. £100 per month) and there is no way it will be possible for me to clear this account within 12 months; especially when I will be paying you back for my bikes4work now things become a bit clearer to me being in finance..but in a not good way - sorry. Taking one of these work loans out is not a good plan unless you know your job is safe and you can afford to pay up and clear the loan if you leave :0(separately and will have to apply for a government Crisis Loan from the Social Fund and will be paying separately for that also. This means you will be covering £100 per month of charges for over 12 months; £1200 or more that you will not get back. Whereas if you rectify the illegal recall of a BACS transfer is not illegal in the slightest activity of accessing my account they didn't acces your account - they recalled a paymentthen I will only be making repayments to you, plus you will be getting back the money, you are a person who has left teh company - they won't be interested in your offer to repayas opposed to pouring it into an almost bottomless pit of monthly charges. This seems like a perfectly reasonable and amicable solution to me, and better for both of us.
You made the error, yes..speak to an emp law solicitorwhich means you can't leave me in a worse situation than before it happened (and it's not like I'm asking you to better my circumstances; had you not made the error I would have simply not paid off my payday loan or made any extra payments to other debts and arrears); that was your decision..not theirs the only two ways to do this are either for you to cover the unauthorised overdraft (£675) and associated charges (£5 per day, two days: £10) and ensure my credit file is not adversely affected,they will not do any of that and have no obligation to but you will have this repaid alongside the Bikes4Work fees; somewhere in this it will say the debt is yours and that you pay up straight away on leaving the job - seen one of these loans for rails fares to work myself and opted out because of this part or you can cover my monthly charges (£100 per month, 12+ months: £1200+) and correct my credit file month on month for this entire period, but never see any of this money to cover charges back again. The choice seems simple. In addition, should you continue to adopt the second option, I will be unable to use the account so it will have very little turnover and the £1000 authorised overdraft will expire in around 11 months. From that point I will continue to be charged £100 per month unauthorised overdraft fees until I have paid off the £1000 also, and will continue holding you responsible for them. you can hold them responsible all you like but it is not their problem - sorry

This situation needs to be resolved, and quickly. I would rather it be done amicably, but my next step will have to be ACAS and their pre-claim conciliation service and, ultimately, an employment tribunal if necessary. But I hope it does not come to that.

Quote:
Originally Posted by HR Response
I am in receipt of your email of 20/7/11 and respond accordingly.

Whilst I appreciate that the circumstances of the overpayment have been explained to you, I do feel it necessary to document them here for the sake of clarity.

Your last day of employment was 4th July 2011. You had previously entered into a ‘cycle to work’ scheme and applied for a loan of £700.00 in May 2011, with the first of 12 repayments commencing in June 2011. During routine investigations of all loan accounts it was discovered that you had been credited in error £751.05. you were credited £751.05 more than you should have been??? Wow! Nice but not yours - presumably you did tell them?We sought to rectify this as part of the monthly account reconciliation process used in the instances of salary overpayments
or mistaken payments. This process is undertaken on the 18th/19th of each month. [B[this sounds like maybe you didn't tell them and that they discovered this error..not good at all on your part - did you not spot an extra £1400 when you were expecting £700? [/B]Unfortunately due to a calendar anomaly (what?), £808.50 was credited to your account on 16th July 2011 (Actually around 9pm on the 15th).bacs works up til 10pm each night You then spent these funds prior to the 18th July 2011 upon when we then reclaimed
the payment.

As I understand it your position is as follows.

1. You believed that the £808.50 was your salary and that you were entitled to spend it. seems so from your actions
2. You believe that we were not entitled to reclaim the funds without your authority.seems so..but they were entitled actually
3. You state that our action has put your account into an unauthorised overdraft and that we have guaranteed to meet all of your overdraft charges. in writing?

In response to point 1, whilst we acknowledge that this situation is the result of a mistake, such mistakes are recoverable at common law (yes, from future salary payments). when would you have future salary payments? You left on 4th JulyYou had received an amount to which you were not entitled and to which you had received no consideration[B[ meaning nothing in writing[/B]. In my view you should have been aware that salaries are only every paid on the 19th of each month with Santander account holders receiving them a day in advance. In addition to this, salaries are remitted for the full current month. you would know this being an employee for longer than a month This was clearly communicated to you in your offer letter and contract of employment (OK, so I ought to have known this better; but the last time I saw this was when I signed it two years ago).

You have stated that you were not aware of how much you were expecting, level of service bonus amount, number of holidays taken or structure of payment period. You acknowledge that you made an assumption I agree you made an assumption - you could have checkedthat you were entitled to these funds. I note that you did not seek clarification from Santander or receive any confirmation that this payment was correct. valid point You then proceeded to spend it within a 48 hour period. which is very quick! The speed of which you disposed of the funds sent to you in an unusual time of which you cannot fully account (I thought I did, as above?) negates any liability on our part for adverse consequences which affect you. they hold no liability for your own circumstances

Santander has a general right of set off with regards to our employees and Santander accounts. This is confirmed within your contract (nope, or not as far as I can see... will post the relevant section up here when I can get at it). We are therefore not required to either notify you of our intentions or seek your permission to do so. I trust this deals with point 2 in a clear and unequivocal manner. Clearly you know what 'set off' means I don't sorry

Regarding point 3, I have reviewed the circumstances of your conversations with representatives of the company. You have stated that a verbal offer if this happened you should have got it in writing was made to meet your overdraft charges. This is incorrect.[B[ your loss for not getting it in writing I'm afraid[/B] The clear offer was made to meet your charges for a one month period only (nope, I was told that any charges I incur as a result would be covered). This offer was made by a representative who was not fully aware of the situation (so if I am not 'fully aware' of the speed limit, can I avoid a fine for speeding?). However, I am prepared to honour as a gesture of good faith, on receipt of confirmation of your bank charges incurred on the 19th July only. [B[ thought it said one month up there ^^^ now it's only one day - clarify this urgently!![/B]I also note that at the time of the mistaken payment your account was £881.28 into your overdraft. Therefore even without this mistaken payment crediting the account you still would have exceeded your overdraft limit after settling the third party payment of your payday loan (Didn't I clearly say that I simply would not have settled it?). It is therefore unclear how we can be held liable for a financial predicament you would have ultimately experienced without our involvement. your finances are your predicament and not theirs - yes they made a mistake - they should have told you but they rectified it as soon as they could - two days in banking and recalls is pretty quick!!!
Go see an employment law solicitor..but I would only complain about the lack of giving you notice on the recall and that they made the error - those are the only two things you have to fight with on this I'm afraid. I may be wrong..just my opinion on working in finance for 25 years.


I typed all this and lost it hence it has taken so long!!! Grrr!
Sorry if some quotes don't work properly :0( All done manually after I lost it all!

Jariya

Uncertain wrote: »

Sorry but that is a totally different situation.

What I'm asking is this....

I make a payment to somebody (you even) to the correct bank account. I then find I have made an error and paid too much or maybe shouldn't have paid anything.

Can I reclaim under these circumstances? If so, is there any time limit?

Suppose I sell you something and we agree I will release the goods once your payment has cleared. You seem to be suggesting that there is no clear answer to if / when that will happen.

You have about 2-3 days usually to take it back from me in this situ. Bacs takes about 3 days..so you have that time to recall.

If it is in a holding account or has been a lot longer you request a bank trace on the money first..and then recall if needs be.

Jariya

Jariya wrote: »

You have about 2-3 days usually to take it back from me in this situ. Bacs takes about 3 days..so you have that time to recall.

If it is in a holding account or has been a lot longer you request a bank trace on the money first..and then recall if needs be.

Usually - meaning usual in my experience.
At work we can recall up to about 7 days I believe (at least) without a bank trace of funds. Totally legally too if there is an error made.

LadyMissA

ok so say you just bank with Barclays and some how your account gets credited with £100 that wasnt meant for you the bank then can then reverse the payment BUT if an employer pays you and it hits your account they have no power in reversing the money , they have to let you know they have overpaid you and then you arrange to pay it back.

I am guessing they have done this as you bank and work with Santander but if you worked for say Tesco and they over paid you they can not get it back unless you give it back

FATBALLZ

I used to work for a bank (a different one to you), before I left they made me sign something saying they could take any salary overpayments directly out of my account. So it wasn't in the original contract, it was a different document I signed at a different time. Are you sure you haven't done something similar?

Jariya

LadyMissA wrote: »

ok so say you just bank with Barclays and some how your account gets credited with £100 that wasnt meant for you the bank then can then reverse the payment

The bank don't know this isn't for you - you have to tell them

BUT if an employer pays you and it hits your account they have no power in reversing the money , they have to let you know they have overpaid you and then you arrange to pay it back.

An employer does have power to reverse if they have paid you and it wasn't for you. They should tell you - hopefully they would - but it is your money coming in so you'd notice if you had a payment which you weren't expecting and say something.

I am guessing they have done this as you bank and work with Santander but if you worked for say Tesco and they over paid you they can not get it back unless you give it back

Tesco could get it back exactly the same way Santander did actually.

LadyMissA

Jariya wrote: »

The bank don't know this isn't for you - you have to tell them
An employer does have power to reverse if they have paid you and it wasn't for you. They should tell you - hopefully they would - but it is your money coming in so you'd notice if you had a payment which you weren't expecting and say something.


Tesco could get it back exactly the same way Santander did actually.

No I work in accounts and once an account is paid you can not re call the money unless on the day it was meant to hit therefore showing an in and an out. Once it's there they can not get it back or getting back over payments to anyone would be really easy but it isnt

LadyMissA

Jariya wrote: »

Tesco could get it back exactly the same way Santander did actually.

So you are saying ANY employer can pay you on Monday and say on Thursday instruct their bank to get it back off you? I think not!

Naf

Jariya wrote: »

I anticipated my final wage to be paid around the 19th.

You were aware that payments were made on 19th - just to clarify - however - yeah a payment a few days prior to that..I'd have thought the same and that it was valid too

Santander account holders receive their pay on the previous working day to others, and it actually hits the account around9pm on the evening of the working day before that. Check a calendar; non Santander account holders received on Tues 19th, Santander account holders will see it in their account on the evening of Friday 15th (although the transaction is still dated the 16th). This is exactly as normal in every other month.

Jariya wrote: »

I did not know how much I was expecting

; In all honesty you could have checked and chased them for this- they would have known by about 13th what you would be getting - an bearing in mind this was an earlier payment - but you wouldn't know that - at the end of the day - or a job it's always a good idea to nag them and check what is due to you - make sure to check in future - I haven't and have had shocks myself - I always check now! Always!

They don't talk to staff while payroll is running; I have tried before. They tell you to wait and check the system on the 15th (when payslips show on the computers) obviously I wasn't there to be able to see the system.

Jariya wrote: »

not knowing what holidays I had taken

..this may sound an odd question but how would you not know what hols had been taken?

Just not sure how many total days were holiday, how many were rest days, how many were time owed for extra hours I had done in the past...

Jariya wrote: »

so when on the 16th £808.50 went into my account I, naturally, took this as my final wage – it was not the usual monthly wage I had received before so, clearly, had been calculated and I trusted it was correct. I therefore repaid the payday loan I had outstanding of £500 as well as making other extra payments to bills and buying household groceries.

OK..big warning for the future here..never ever pay out on funds you are not TOTALLY sure of. I would have queried why the sum was £808 and not £940..I know this doesn't help you right now..and I am sorry for that :0( I wouldn't even be here posting if I didn't give a fig about how awful this is for .
you..but..payments to you..they have to be your responsibility to check..it's your money..it's important and crucial to you..please check in future..I check every single salary payment of mine matches my payslip - mistakes can happen way too easily

I had nothing to check it against; I still have not received the payslip for it even now. £940 would have been a normal salary run, but I guessed not to expect a full month. It being an obviously calculated figure, it seemed normal that it would be my final wage. We're talking Friday night, the earliest I could have called them would be Monday morning. I wanted rod of that payday loan as quickly as possible, naturally.

Jariya wrote: »

Then, on the 18th (in the afternoon) you entered my account without my permission

They didn't enter your account actually - it was a recall for an error (which they made admittedly) but if you had been working for I dunno Tesco and Tesco had made an error they would have been perfectly entitled to do the same thing with the funds - honest!,

Not according to ACAS. I phoned them quite soon after phoning HR and they immediately said that other employers would have no means or right to do this, so to check my terms of employment, and even contact FSA to see if there's some special permission for banks to be able to (at one point it sounded like HR were trying to say this).

Jariya wrote: »

and without contacting me in any way

,This is not good at all - they should have - this is why I suggested in an earlier post to get a half hour freebie with en employment law solicitor - they might be able to do something with this part - I'm not sure - worth a try! SERIOUSLY!!!

At the end of the day, I'll leave them to take me to court if they choose. I'm not using any of their accounts any more and I'll pay back what I can afford to quite happily - they'll get what their given. If I have to bend over and take it, so do they. I'll be the one they have to prove guilty, not the other way around thank-you-very-much.

Jariya wrote: »

especially when I will be paying you back for my bikes4work

now things become a bit clearer to me being in finance..but in a not good way - sorry. Taking one of these work loans out is not a good plan unless you know your job is safe and you can afford to pay up and clear the loan if you leave :0(

Yeah, well I was pretty confident my job was safe, and that at least by the time I would leave I'd have savings enough (or enough paid of my CC) to clear the remainder.

Jariya wrote: »

then I will only be making repayments to you, plus you will be getting back the money,

you are a person who has left teh company - they won't be interested in your offer to repay

I now owe them just over £2k, I think they might be.

Jariya wrote: »

which means you can't leave me in a worse situation than before it happened (and it's not like I'm asking you to better my circumstances; had you not made the error I would have simply not paid off my payday loan or made any extra payments to other debts and arrears);

that was your decision..not theirs

It was, but if they had done it right at their end I would not have made these payments at all and so would not have been pushed into the red (or at least not so far).

Jariya wrote: »

During routine investigations of all loan accounts it was discovered that you had been credited in error £751.05.

you were credited £751.05 more than you should have been??? Wow! Nice but not yours - presumably you did tell them?

I didn't know this was the case until after it went wrong and called them; then they explained to me the details. Funny thing is that the bike loan was only ever for £700, so £751.05 is completely unrelated to me. What they did was on the system put -£751.05 for the bike in the deductions column and so it was added (the deductions column shouldn't have a '-' on the figure).

Jariya wrote: »

(Actually around 9pm on the 15th).

bacs works up til 10pm each night

As I said, seeing this was completely normal.

Jariya wrote: »

3. You state that our action has put your account into an unauthorised overdraft and that we have guaranteed to meet all of your overdraft charges. in writing?

Unfortunately not, this only happened across three or four days.

Jariya wrote: »

In response to point 1, whilst we acknowledge that this situation is the result of a mistake, such mistakes are recoverable at common law (yes, from future salary payments).

when would you have future salary payments? You left on 4th July

I'm pointing out the legal situation that employers are entitled to recover overpayments from future salary, and this is the only thing mentioned in my contract terms too.

Jariya wrote: »

You had received an amount to which you were not entitled and to which you had received no consideration[B[ meaning nothing in writing[/B]. In my view you should have been aware that salaries are only every paid on the 19th of each month with Santander account holders receiving them a day in advance. In addition to this, salaries are remitted for the full current month. you would know this being an employee for longer than a month

Again, I'd not dealt with this for two years, assuming I ever knew. I just got paid a monthly salary on the 19th. Never had a job before that paid anything in advance.

Jariya wrote: »

You then proceeded to spend it within a 48 hour period.

which is very quick!

Not that quick when most of it was on the payday loan. And I'd not spent all of it either. Hence only being £675 overdrawn, not £808.

Jariya wrote: »

Santander has a general right of set off with regards to our employees and Santander accounts. This is confirmed within your contract (nope, or not as far as I can see... will post the relevant section up here when I can get at it). We are therefore not required to either notify you of our intentions or seek your permission to do so. I trust this deals with point 2 in a clear and unequivocal manner.

Clearly you know what 'set off' means I don't sorry

I've taken it as meaning offset as per a debt that can be claimed from another account. Unfortunately (for them) there seems to be no contractual terms that states this.

FATBALLZ wrote: »

I used to work for a bank (a different one to you), before I left they made me sign something saying they could take any salary overpayments directly out of my account. So it wasn't in the original contract, it was a different document I signed at a different time. Are you sure you haven't done something similar?

Very sure. It'd form part of my contract terms, and I requested the most up to date version of these from them - nothing whatsoever in there.

GothicStirling

What about the T&C of the loan agreement?