Wages overpayment

grazzzz

My son does surveys for a company that does loft insulation and cavity wall and solar roofing he is paid a basic salary plus a bonus for every survey he has worked for them for 3 years . Yesterday he is told that he has been paid the wrong rate due to a computer error for the loft surveys for the last 3 years and now owes them £2400 which they want to deduct monthly
He hasn't had a commission sheet telling him how much he should have got so presumed he was getting the correct payment
Can they go back 3 years? Where were the auditors ?
Also how can he claim the overpaid tax and N I back
He is upset to be told this the week before Xmas !
I think it's unreasonable to take 3 years back and said to take them to court if he can't negotiate as it isn't his fault
Any advice please

marybelle01

It is up to the employer to be able to prove that an overpayment has been made. But if it has, the law allows the employer to go back as far as six years to recover an overpayment. It doesn't matter whose fault it is - if the money is owed the money is owed, and you cannot take them to court to stop them claiming it. They can take him to court to make him pay it though! Deductions from wages are, however, permitted to cover overpayments provided the total deduction does not take the total wage below the level of the national minimum wage.

His first step should be to ascertain that there has actually been an overpayment by asking for the evidence that he has been overpaid; and if he has they may be willing to negotiate a lower amount, although nothing says they have to.

grazzzz

marybelle01 wrote: »

It is up to the employer to be able to prove that an overpayment has been made. But if it has, the law allows the employer to go back as far as six years to recover an overpayment. It doesn't matter whose fault it is - if the money is owed the money is owed, and you cannot take them to court to stop them claiming it. They can take him to court to make him pay it though! Deductions from wages are, however, permitted to cover overpayments provided the total deduction does not take the total wage below the level of the national minimum wage.

His first step should be to ascertain that there has actually been an overpayment by asking for the evidence that he has been overpaid; and if he has they may be willing to negotiate a lower amount, although nothing says they have to.

I have just found this on a legal website

"If you cannot come to an arrangement about repaying your employer you could use your internal grievance procedure to try to resolve the matter. You could also choose to sue your employer in a Civil Court if you felt they were being unfair and unreasonable to recover the repayment. Your defence would be that you were led to believe that there was an entitlement to the money, it was not your fault, and that, in good faith, you have “changed [your] position” in reliance on the money. This usually means that you have spent it!"

marybelle01

grazzzz wrote: »

I have just found this on a legal website

"If you cannot come to an arrangement about repaying your employer you could use your internal grievance procedure to try to resolve the matter. You could also choose to sue your employer in a Civil Court if you felt they were being unfair and unreasonable to recover the repayment. Your defence would be that you were led to believe that there was an entitlement to the money, it was not your fault, and that, in good faith, you have “changed [your] position” in reliance on the money. This usually means that you have spent it!"

You could also end up owing a lot of money in legal fees and court fees and still owe the employer the money! There isn't a definition of unfair or unreasonable, and you would be depending on proving something that isn't defined, whereas the employer would be depending on something that is - a proveable (assuming they can prove it, as I did say) wages overpayment is a debt and recoverable in law. And if they win, they have a court order enforceable debt which will remain with him until it is satisfied. That's a lot of risk to take, but if that is what he wants to do, then he should go ahead. Of course, that isn't to say he will have a job to fund any of this when he does.

It is far less riskier to do as I said - ask the employer to prove it and then try to negotiate it if he has been overpaid.

ValHaller

marybelle01 wrote: »

It doesn't matter whose fault it is - if the money is owed the money is owed, and you cannot take them to court to stop them claiming it.

That is misleading. If claiming goes as far as deducting and you disagree - or indeed if the employer is not forthcoming with genuine evidence, then you do have a claim which can be taken to court.

grazzzz

marybelle01 wrote: »

You could also end up owing a lot of money in legal fees and court fees and still owe the employer the money! There isn't a definition of unfair or unreasonable, and you would be depending on proving something that isn't defined, whereas the employer would be depending on something that is - a proveable (assuming they can prove it, as I did say) wages overpayment is a debt and recoverable in law. And if they win, they have a court order enforceable debt which will remain with him until it is satisfied. That's a lot of risk to take, but if that is what he wants to do, then he should go ahead. Of course, that isn't to say he will have a job to fund any of this when he does.

It is far less riskier to do as I said - ask the employer to prove it and then try to negotiate it if he has been overpaid.

Why would it cost him lots of money in legal fees ? The court cost to take someone to court is £160 they are being unreasonable to demand 3 years when it is there error I think a judge would see this as incompetent on there behalf a year maybe not 3 years he is entitled to take out a grieve a procedure it's employment law and an employees right, why would he not have a job are you suggesting they would dismiss him if he refused to pay then this would be constructive dismissal

marybelle01

grazzzz wrote: »

Why would it cost him lots of money in legal fees ? The court cost to take someone to court is £160 they are being unreasonable to demand 3 years when it is there error I think a judge would see this as incompetent on there behalf a year maybe not 3 years he is entitled to take out a grieve a procedure it's employment law and an employees right, why would he not have a job are you suggesting they would dismiss him if he refused to pay then this would be constructive dismissal

You have heard of redundancy? It happens a lot.

But have it your own way. If you know exactly what a judge will decide then good on you. I suggested that he try to resolve this with the employer rather than go down legal routes, but it is really his choice. By the way, a grievance is "trying to resolve it with the employer" - exactly what I said in the first place.

grazzzz

marybelle01 wrote: »

You have heard of redundancy? It happens a lot.

But have it your own way. If you know exactly what a judge will decide then good on you. I suggested that he try to resolve this with the employer rather than go down legal routes, but it is really his choice. By the way, a grievance is "trying to resolve it with the employer" - exactly what I said in the first place.

Thanks for your very helpful advice

marybelle01

ValHaller wrote: »

That is misleading. If claiming goes as far as deducting and you disagree - or indeed if the employer is not forthcoming with genuine evidence, then you do have a claim which can be taken to court.

Provided the deduction does not take the wage below the minimum wage (except in the case of retail workers where the rules are different) then a deduction for an overpayment is a lawful deduction and does not require a seperate agreement, unlike most (but not all) other deductions. Which is what I said. And I also said that the employer had to be able to prove the overpayment. In what way, therefore, was it misleading? It is entirely legally accurate.

ValHaller

marybelle01 wrote: »

Provided the deduction does not take the wage below the minimum wage (except in the case of retail workers where the rules are different) then a deduction for an overpayment is a lawful deduction and does not require a seperate agreement, unlike most (but not all) other deductions. Which is what I said. And I also said that the employer had to be able to prove the overpayment. In what way, therefore, was it misleading? It is entirely legally accurate.

You are forgetting the bit about whether or not the employer's claim is justified. What you have written above CLEARLY implies that the employer can just make up a claim and deduct regardless of whether the claim is justified.

Please take the point, what you have written is NOT entirely legally accurate until you take into account the need for the employer to justify the claim and also the rights of the employee to take the matter to court if the employer makes deductions without agreement. Your statement

It doesn't matter whose fault it is - if the money is owed the money is owed, and you cannot take them to court to stop them claiming it.

is effectively rubbish, because the only place where a claim can be justified is in a court - if there is a disagreement and the employer claims the money from wages, then the employee most definitely does have recourse to court to get a ruling.

marybelle01

ValHaller wrote: »

You are forgetting the bit about whether or not the employer's claim is justified. What you have written above CLEARLY implies that the employer can just make up a claim and deduct regardless of whether the claim is justified.

Please take the point, what you have written is NOT entirely legally accurate until you take into account the need for the employer to justify the claim and also the rights of the employee to take the matter to court if the employer makes deductions without agreement. Your statement

is effectively rubbish, because the only place where a claim can be justified is in a court - if there is a disagreement and the employer claims the money from wages, then the employee most definitely does have recourse to court to get a ruling.

"His first step should be to ascertain that there has actually been an overpayment by asking for the evidence that he has been overpaid!"

Quote from my first post. I said that the employee should ascertain that the employer can evidence an overpayment has been made.

But I am not going to argue further. The OP has clearly made up their mind what they want their son to do, and I have pointed out the risks involved in that. So if it doesn't work out, that is their decision.