Ex-employer delving into my bank account

Naf

Hi, I've been sent here from the employment board as we seemed to have pretty much exhausted that side of things (Thread: https://forums.moneysavingexpert.com/discussion/3390696)

Essentially, I left working for Santander on the 4th of last month. I hadn't worked the full notice, but Santander were not worried by this. I had, however, joined a Bikes4Work scheme in May, first payment was made in June. I had no clue what to realistically expect for my final wage (19th ish of this month), so when £808 went in on the 16th I took it as correct (every other wage I had received had been correct for 2 years; my normal monthly salary would have been £940, so this amount had clearly been calculated somehow) and bought groceries and paid off a payday loan. However, on the 18th the full £808 was taken back out of my account leaving me £675 overdrawn. I contacted them, naturally, and discussed it to discover I wasn't owed any money at all because the Bikes4Work hire agreement was all taken from my final wage (my fault for not reading the agreement fully, I was under the impression they would contact me).

I've moved everything over to a parachute account, so my finances going forward will be unaffected, what I want is for Santander to take some responsibility for the fallout of their mistake and make a reasonable arrangement to fix the matter; one I can manage and isn't going to cost me, or affect me any more than it would have if I still had the payday loan. Currently they're unwilling to move, so I need to know if there is any justification for them to be allowed to enter my account and just take this money back off me. I've already ascertained they have no real right under employment law: there's nothing in my contract, and no other employer would have the ability or right to do the same (already been to ACAS). But they also mentioned they have the right of 'Set Off' (unless this means something different, I have assumed they mean 'Off Set') against employee accounts. Again, this is not in my Terms of Employment, ans as from the 4th it reverted back to a standard account, no longer employee account; and these T&Cs state:

T&Cs wrote:

When we can use money between accounts
27.1 If any money is overdue for payment on any other account
you have with us (such as a loan, mortgage, credit card or
overdraft) we may take the money you owe us out of your
account. We can do this where you have accounts which
are held in your sole name as well as joint accounts you
hold with another person. Where possible we will give you
advance notice, unless we reasonably think that you may
move your money to stop us.
27.2 We can also apply Condition 27.1 to pay money you owe on
other accounts which you hold with any other member of
the Santander Group of companies in the UK.

Does anyone know if they are entitled to do this?

onlypaddy

I recently looked at getting into a bike to work scheme, however I didn't for the same reason - it is essentially a loan and if you leave the company then they take the full amount of outstanding from your final pay packet. So I'm afraid they were probably within their right to do it.

They've mis-quoted the rules of Off Set though, they can only take money from your current account do this if you have a debt with them and have missed monthly payments.

SarEl

Naf wrote: »

I've already ascertained they have no real right under employment law:

Correction - we have already established on the employment board that they did have a right to make the deduction under employment law, the question is whether the method they adopted was within banking regulations.

stclair

At RBS in our contract it states they will deduct any monies owed to the company via our final salary.

You want to look at your contract of employment rather than the account T&Cs.

Naf

SarEl wrote: »

Correction - we have already established on the employment board that they did have a right to make the deduction under employment law, the question is whether the method they adopted was within banking regulations.

Yes, I've accepted on both threads that the deduction was fair and proper. But they've made a completely separate error. I absolutely accept that it turns out I was not entitled to this once it was explained by payroll on the 19th.
What I need to know is, as you say, if they, as my employer, are entitled to take the overpayment from my bank account, specifically under the off set terms (or if there's any other law that would allow this). The Bikes4Work is nothing to do with the issue, really, as even if it had not been deducted, the error they made by paying me £808 would still have been an overpayment.

Naf

stclair wrote: »

At RBS in our contract it states they will deduct any monies owed to the company via our final salary.

You want to look at your contract of employment rather than the account T&Cs.

I have done. The employment law side of this has been done pretty comprehensively. There is no 'common law' (as they claimed in their reply to me), or anything in the Terms of Employment that would permit them to do this from my account; only for them to make deductions from my pay.

stclair

Naf wrote: »

I have done. The employment law side of this has been done pretty comprehensively. There is no 'common law' (as they claimed in their reply to me), or anything in the Terms of Employment that would permit them to do this from my account; only for them to make deductions from my pay.

Ill ask my friend for you hes a regional manager for santander and ill send you a PM with his reply.

Naf

stclair wrote: »

Ill ask my friend for you hes a regional manager for santander and ill send you a PM with his reply.

I asked my ex-colleague who is a union rep. He said they are allowed within 7 days. My issue is that this is nowhere to be found in the Terms of Employment (they even sent me the most up to date copy just last week at my request).

Naf

onlypaddy wrote: »

They've mis-quoted the rules of Off Set though, they can only take money from your current account do this if you have a debt with them and have missed monthly payments.

Hmmm... HR quoted 'Set Off', which appears to apply when both parties owe each other money (http://en.wikipedia.org/wiki/Set-off_%28law%29). So this is just what applies to my wages being wiped out by the Bikes4Work agreement (the part I'm not contesting anyway).

I can't find any definition or help with 'Off Set'. Do you have anything to clarify what, exactly, they have the right to do, as their own T&Cs are even a little wishy washy on the subject...

Joe_Bloggs

MSE_Martin has written on the subject of the right to set off here.

A potted law history:-
Past court judgements make case law which then sets a precedent for future judges to decide matters. If aeons of case law is on the side of one party then there is often very little point in contesting a court action. Hence a bank can act without fear of court involvement or consideration of employee contract terms given the right to set off.

The FOS will reverse a right to set off situation in the case that its use was applied in an inappropriate way.

I think that we all make mistakes and we learn by sharing them rather than having to make them for ourselves.

J_B.

noh

They have used their right of set off described in section 27 page 12 of their General Terms and conditions.
http://www.santander.co.uk/csgs/StaticBS?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1223412828834&cachecontrol=immediate&ssbinary=true&maxage=3600


The correct term is "set off" not offset which has no meaning in this context.

You owed them £808 they owed you £808 (the money in your account).
They applied the right of set off and the two sums were wiped out.