estoppel and salary overpayment

masdon

hello and thanks for reading this thread

i have a situation i would like to seek educated opinions on.

6 months ago my mother who works in a care home for the county council was payed an extra thousand pounds in her monthly salary, which bearing in mind she earns roughly four hundred pounds a month seemed very suspicious to her, so upon receiving this money she made a phone call to her employer and then the accounts department who informed her that the money was a tax rebate and that it was not a mistake in her wages.

now after six months and the money being spent she receives a letter stating that there had been an error in entering her p45 details and that an overpayment had been made..which would have to be payed back in full in the next three months.

i would like to know if anyone with a knowledge of the law regarding this situation and in particular estoppel could shed some light on whether it applies here.

i am currently of the belief that the three main concepts of estoppel in this case are:

1) The employer must have done something which led the employee to believe the money was rightfully his (or hers). (..covered by the phonecall which has been recorded as taking place and the reassurance of the money being rightfully paid noted by both parties.)



2) The employee must have “changed position”, which usually means that they have spent the money...(the money was spent some time ago)



3) The overpayment was not the employee’s fault.




educated advice would be greatly appreciated, obviously as my mother earns a small monthly wage repaying this amount would be crippling.

thank you

ValHaller

Deleted. OP does not want opinions form the likes of me.

Savvy_Sue

Bit confused by mention of a P45, if she's still working there.

Also does she not receive payslips, which would have identified what this was?

Annisele

I'm not sure the phonecall is enough to lead the employee to believe the money was rightfully hers.

If the overpayment had been £1 million, the phonecall certainly wouldn't have been enough - an overpayment of that magnitude on a £400 a month salary just isn't plausible. An overpayment of £1,000 on a £400 salary doesn't very plausible to me either.

But I agree with the other posters - she needs to check the true position, and payslips etc will help with that.

masdon

thanks for the replies

yes so you can see that paying back £1000 out of a total earnings of £1200 over £300 months is not really much of an option.

just to clarify the extra money was not at any point suggested to be part of her salary, when my mother received her payslip the wage section was as normal £409 but in a column to the left marked paye the was the extra £1000 so believing she must have been payed somebody elses wages she rang the accounts department,

the accounts department investigated and expressly confirmed that the money was a tax rebate and there was nothing to worry about...after calling again recently the council have this phonecall and my mother being told the money was a tax rebate on record..i will be sure to have it in writing soon.

my mother started working in the job around 9 months ago and the inputting of the p45 would be the one from her previous employer...which the said accounts department entered into their system incorrectly and issued a tax rebate which im pretty sure once they went to claim back from the inland revenue in march before the tax year ended they were told they had made a mistake and no rebate was in order....so the council had handed out a £1000 of their own money and now they want to recoup their erroneously handed out rebate.

i can make copies of the payslips and letters from them and put them up for you to see if its helpful

there isnt a union to represent her at the minute and im pretty sure if there were the way in which the money is being claimed back would be simply laughable to them but i need to find a solution myself and i do appreciate the advice

thanks again

Jennifer_Jane

I think you should contact the Citizen's Advice Bureau (on this forum perhaps). The advice given to me when I had to use the Law of Estoppel was to see a solicitor. Or how about Small Claims Court?

When it happened to me it was me vs Midland Bank. I had been told (nothing in writing) that my balance was £60 (this was in 1969!!), which was a month's salary actually. I had to tell my solicitor the things you mention, exactly that - ie why could you have thought what they said was right, what had the money been spent on, etc. It was quite intimidating taking on the Bank when I was just a young girl with no savings and small income.

Please note that I didn't have to prove anything. I think that is the point of Estoppel. They can't deny they said something to you. So good luck with it.

Annisele

I think that negotiation with the employer is likely to be the way forward (but I am not a lawyer). I just can't see that it's reasonable for your Mum to think the £1,000 was a tax refund - unless she'd seriously been overpaying tax before. So, I think she needs to work out how much income she's received during this tax year, how much tax she's paid, then work out whether those two things are right.

Estoppel is "a shield not a sword" - which means you might be able to rely on it as a defence if somebody else sues you, but you can't use it to sue somebody else.

ACAS has some information about pay deductions. Paying that amount of money back over such a short period sounds very much as though it would cause financial hardship, and (since it's the employer's mistake) it should be reasonable about the time taken to fix it.

Another thing to think about is that your Mum has very little employment protection right now. If her employer decides to sack her because it doesn't like her, there's very little she can do about it - because she hasn't been employed long enough. So, rocking the boat might not be wise.

Takeaway_Addict

Jennifer_Jane wrote: »

I think you should contact the Citizen's Advice Bureau (on this forum perhaps). The advice given to me when I had to use the Law of Estoppel was to see a solicitor. Or how about Small Claims Court?

When it happened to me it was me vs Midland Bank. I had been told (nothing in writing) that my balance was £60 (this was in 1969!!), which was a month's salary actually. I had to tell my solicitor the things you mention, exactly that - ie why could you have thought what they said was right, what had the money been spent on, etc. It was quite intimidating taking on the Bank when I was just a young girl with no savings and small income.

Please note that I didn't have to prove anything. I think that is the point of Estoppel. They can't deny they said something to you. So good luck with it.

The CAB on this board no longer is running.

masdon

Annisele wrote: »

I think that negotiation with the employer is likely to be the way forward (but I am not a lawyer).

no offense I seek educated opinions only


thankyou

masdon

I'm aware that 5 of my colleagues were overpaid by over 30 thousand pounds and were not required to pay back a penny due to a law our union rep dug up from somewhere so i'll get hold of him on friday and at least get a copy to consider..and put on this thread for other peoples benefit too.


all the helpful info is appreciated

thanks agian

Bailey101

masdon wrote: »

no offense I seek educated opinions only


thankyou

Wow, that was pretty rude! Annisele gave you good advice and you call them uneducated? Just because people don't always tell you what you want to hear doesn't mean that they don't have 'educated opinions'.