redundancy overpayment?

anne06

I was made redundant after 34 years of work at a company which was taken over after 24 years at which time I was off long term sick ( 3 months with broken hip.) so I never actually saw anyone at the change over of owners.
The boss showed me my redundancy figure pointing out it included my time working before the take over.
I accepted the offer 4 years ago but have recently been contacted by the company stating they were unaware at the time of my reduncancy offer that I had been self-employed for 20 years with the old company making me ellegible for only 14 years redundancy.

Needless to say they want some money back.

Can they insist on this as I accepted their offer in good faith.

lincroft1710

Were you genuinely self employed?

anne06

Yes, self employed for about 20 years before the previous owner decided it would be better for me to become employed.

My redundancy payment wasn't huge although it was a bit better than I had expected and I put it down to generosity of the firm acknowledging my long service.

I just wondered if the company can now claim back a few thousand pounds.

lincroft1710

The reason I asked was that people sometimes believe they are working as self employed when in actual fact they were in effect employees, but the employer refused to treat them as such.

Scorpio33

From here (https://www.gov.uk/employment-status/selfemployed-contractor)

"Someone is probably self-employed and shouldn’t be paid through PAYE if most of the following are true:

they’re in business for themselves, are responsible for the success or failure of their business and can make a loss or a profit
they can decide what work they do and when, where or how to do it
they can hire someone else to do the work
they’re responsible for fixing any unsatisfactory work in their own time
their employer agrees a fixed price for their work - it doesn’t depend on how long the job takes to finish
they use their own money to buy business assets, cover running costs, and provide tools and equipment for their work
they can work for more than one client"

Conversely, If the above isn't true to you, even though you were treated as self-employed, you would be an employee under the eyes of HMRC.

anne06

Thanks for all the replies but I was certainly self-employed for 20 years with the original boss eventually advising me I would actually make more money as an employee.
Certainly made sense and as previously mentioned, the redundancy was better than expected now explained by the fact that the 2nd company had not been advised correctly of my employment history as everyone else at the original company had been employed.

So can they claim back this redundancy overpayment after 4 years or is it time barred?

lincroft1710

As you are probably aware for most debts there is a 6 year time limit, but I do not not know if redundancy or similar payments have a lower limit. A quick Google search hasn't found anything relevant other than "estoppel" which is explained here

http://www.justanswer.com/uk-employment-law/7i8vs-made-redundant-full-time-management-position.html

TBagpuss

I don't think it would be time barred. I suspect that it would come down to whether you knew or should have kbown that they had got it wrong, or whether you had a reasonable belief that they knew the situation.

If the documents you had at the time said "this includes your 20 years employment by Company 1" then it is arguable that that should have alereted you to the fact they got it wrong, however, if they sad something like "we've taken into account your long history with the company and its predecessor" that is more ambiguous.

My guess is that they are probably legally entitled to claw it back but that if you have spent the money it would not be unreasonable to ask for a payment plan so you can repay it at an affordable rate.

However, it may be worth responding to say that you accepted the money in good faith and that you feel that any errors are their responsbility and that it is not appropriate to seek to claw it back so long after the event, and see what they say.

TBagpuss

PS - have you tried calling ACAS to ask for their advice?