Former Employer 'Overpayment of Salary?'

Cami1322

Thank you everyone for your advice and replies. Without giving every detail of the situations that occurred it is difficult to explain it all.



I have appts with the CAB and will hopefully move forward with this.


Thank you all. Appreciate your help.

Gavin83

So how much a month did you offer for repayment?

Manxman_in_exile

OP - can you simplify things for me?


1. Your husband was injured in an accident at work. Owing to his injuries he lost his job.


2. He was awarded some sort of compensation payment which he has received (although it was paid late). This compensation has been spent on dealing with the aftermath of his injuries.


3. After what he and you thought was his dismissal date, his employer paid him (a) salary in arrears and overtime due to him, and (b) two months' additional salary.


4. He/you queried the payment (b) with the "Finance company" (who are they?) who told him/you that he was still employed and had not been dismissed.


5. the same day, you contacted his employer (different from the finance company?) who said they'd sort it out.


6. There followed ten months of emails between him/you and his employer in an attempt to find out what the payment of two month's salary (b) was.


7. "Over 5 months after the dismissal he was informed that he had still been employed due to errors."


8. Now they are asking for repayment of two month's salary.


Is that what's happened? Have you got copies of the emails etc where he/you asked his ex-employer what the payments were for and their failure to answer this question over a ten month period? Have you got it in writing that his employment was not properly terminated because of errors by the employer?


I'm not suggesting that he can avoid having to repay the overpayment, but your story is a bit confusing and it's not entirely clear what has happened, and why. If, for example, you can demonstrate that you took all reasonable steps to clarify what the payment was for, and the employer failed to give a proper explanation (or misled you by saying your husband was still employed) it might help you.

jobbingmusician

My tuppence worth. If what I understand is correct, I don't think he SHOULD have to pay back. ( I am NOT AN EXPERT!)

Husband dismissed, and had great difficulty in getting the employer to pay the agreed compensation.

In the mean time, employer carried on paying salary. Husband contacts employer and is told he's still employed. (Sounds totally reasonable to me.)

On the basis that you were told husband was still employed (was this in writing?) you spent the money. Presumably it seemed reasonable to you that there was a notice period and as it was a dismissal for poor health, there may have been legal niceties to tidy up. Employer has now reneged on their statement and are saying husband WASN'T employed.

So this isn't a simple overpayment you should have known about, it's an overpayment where you were told someone was still employed. I think it's a shame you ever paid anything back, as by doing this you sort of accept there may be a debt. I do hope the CAB or whoever will argue that you took all reasonable steps to check that you were actually entitled to this money, were assured by the company that you were, and so could not have known that it was an error. It is therefore unreasonable (and possibly unlawful) for the employer to demand it back.

Cami1322

Thank you jobbingmusician and maxman for your replies.
Yes that is basically the jist of what happened.

I have all the emails over the 10 month period.
I have the dates that they were contacted by telephone.

I have an email confirming that he was still employed. ( Despite the original dismissal)
To confirm the compensation was purely due to the fact the injuries sustained left him unable to do his job.

We haven't started paying anything back yet as they refused the payments and lost letters and income/expenditure information that I sent. In all letters.
I stated that we were thought the 'overpayment of salary' situation would be resolved with the employer as we genuinely thought my husband was paid as he was told he was still employed until the correct paperwork was sorted out.
I do feel some relief that you seem to understand this mess. Thank you.

Gavin83

So what date does official documentation (such as the P45) give as the leaving date?

It is a complicated case, made more complicated by this whole employer/finance company relationship. I assume they outsource their payroll and this is what you mean by the finance company. I suspect as you aren't employed by the finance company they don't really have the right to inform you on your husbands employment status and that'll need to come from the employer themselves. It seems this wasn't the case. Again like jobbingmusician I'm not an expert but I disagree with him, I think ultimately you will need to pay it back. It's probably worth speaking to a solicitor though.

As another poster previously asked have you got anything about his leaving date in writing?

And I've asked you twice and been ignored but I'll try again. How much did you offer them a month in terms of repayment?

Manxman_in_exile

I usually have little sympathy for people who've been overpaid and try to get out of repaying it (I've had to repay two overpayments in the past) but in this situation I think the OP's husband has a reasonable argument to fight it.


Assuming the facts are as the OP has stated and that she and/or her husband took reasonable steps over a ten month plus period to clarify with the ex-employer what the payments were for, and whether they were entitled to them or not, and the employer failed to explain the situation to them (indeed may have misled them by suggesting that the husband had continued to be employed after what they thought had been his leaving date), then personally I'd tell my ex-employer "then sue me". (But that's only my personal view and the OP would need to weigh up all the pros and cons of taking that route.)


OP - you really need to seek advice elsewhere. Try CAB and also try to find a local solicitor who can offer you 30 minutes free advice. But if you find a solicitor who's willing to take it on for your husband, make absolutely sure you understand exactly what you may end up having to pay for this service.


(As jobbingmusician said, it's a pity you previously offered to make payments even if these were rejected. It could be taken as your husband acknowledging the debt as being legitimate. Make sure you tell CAB and any solicitor you see about this).


If you don't want to contest it (you and your husband may not want the stress and hassle) you could offer to pay instalments again. If it were me I'd be offering to pay over 10, 12, 15 months or however long you were trying to find out from them what the payments were for and they failed to tell you. But that's just what I personally would try and may not be acceptable to his ex-employer. But I'm a very "difficult" character and what I would do may not be the best course of action for you and your husband.


Try CAB etc and see what others say here. I don't think there is a straightforward answer because this is not a straightforward overpayment.


NB - I am not saying that he won't have to repay it eventually - I'm only saying I think he has reasonable grounds to fight it - nothing is certain.


EDIT: When you go to CAB or a solicitor, make sure you have copies of all emails, letters etc with the employer and any other documentation relating to your husband's dismissal. At the end of the day all overpayments are due to errors. Whether he doesn't have to repay it may depend on the type of error and the employer's continued failure to put it right.

Gavin83

Manxman_in_exile wrote: »

indeed may have misled them by suggesting that the husband had continued to be employed after what they thought had been his leaving date

I get the impression the employer didn't suggest this at all, it was the finance company, which I assume is an outsourcing company that deals with their payroll.

Even then I'd be curious as to what they actually said. I feel its far more likely they said "As far as we're concerned you're still employed and we'll continue to pay your salary until your employer tells us otherwise" than outright telling him he's still employed.

Essentially, despite all the extra info (which is useful) this is a fairly standard "I've been overpaid, do I have to pay it back" thread. The answer is almost always yes and while this case is a little more complicated and it is worth speaking to a solicitor I personally don't feel there's enough to avoid paying it back.

OP, how much is the overpayment? If it's significant I can't see the employer dropping this easily.

Manxman_in_exile

Gavin83 wrote: »

I get the impression the employer didn't suggest this at all, it was the finance company, which I assume is an outsourcing company that deals with their payroll.

Even then I'd be curious as to what they actually said. I feel its far more likely they said "As far as we're concerned you're still employed and we'll continue to pay your salary until your employer tells us otherwise" than outright telling him he's still employed.

Essentially, despite all the extra info (which is useful) this is a fairly standard "I've been overpaid, do I have to pay it back" thread. The answer is almost always yes and while this case is a little more complicated and it is worth speaking to a solicitor I personally don't feel there's enough to avoid paying it back.

OP, how much is the overpayment? If it's significant I can't see the employer dropping this easily.

I agree with you that what was actually said between the two parties is crucial to this.


I don't think it's just the "Finance Company" (whoever they are - I also assume it's an out sourced payroll bureau) who have said "as far as we're concerned he's still employed" or whatever the exact words were. I'm taking what the OP says "Over 5 months after the dismissal he was informed that he had still been employed due to errors." as having come from the ex-employer, not the finance company. Unfortunately the OP's posts are a bit confusing and it's not always clear what was said or written and by whom. (That's why they need to take all the evidence they have with them to CAB or whomever). Also, what were the "errors" and why did they occur?


I agree that virtually all overpayment cases end up going to the employer. But here, it would seem(?) that the employer was notified straightaway of the salary payments and there was an ongoing(?) dialogue between the employee and ex-employer for over ten months as to whether these payments were legitimate or not.


Assuming what the OP has told us is complete and accurate, I think they've done everything they could reasonably do to get this sorted out. If I were confident I was in that position (and only the OP and her husband know if they are or not) I'd still say "sue me".


But that's easy for me to say. Better to get advice from CAB or a solicitor.

Blatchford

Gavin83 wrote: »

I get the impression the employer didn't suggest this at all, it was the finance company, which I assume is an outsourcing company that deals with their payroll.

Even then I'd be curious as to what they actually said. I feel its far more likely they said "As far as we're concerned you're still employed and we'll continue to pay your salary until your employer tells us otherwise" than outright telling him he's still employed.

Essentially, despite all the extra info (which is useful) this is a fairly standard "I've been overpaid, do I have to pay it back" thread. The answer is almost always yes and while this case is a little more complicated and it is worth speaking to a solicitor I personally don't feel there's enough to avoid paying it back.

OP, how much is the overpayment? If it's significant I can't see the employer dropping this easily.

I agree with you. There's a lot of superfluous information that is fueling a sympathy vote, but there's no vote on the issue. In a nutshell it's really simple. The poster husbands knew the date on which their contract terminated because they had been told. They didn't get paid as a result, and didn't question that because they knew there weren't entitled to payment on account of being dismissed. Then they suddenly get paid at a later date and questioned that with a third party (not the employer). The employer didn't tell them anything other than they would sort it out. They then assumed that there were reasons for them to continue to receive almost half a years salary after having been dismissed, although there was no real reason to make such assumptions.

That is what it boils down to. That is a really weak case. Regardless of what the poster thinks, employers do not get fined for incompetence. If they did they'd mostly go bust! The only real hope here is that the employer might be convinced, as I said before, to be gracious. But without knowing the whole story, they may not be inclined to be, or willing to be.

That said, picking up a curious small detail, the poster said that the finance company are taking legal action. Not the employer. If this is "just" a case of outsourced payroll, then it would be the employer who takes legal action. So I wonder if the employer did terminate their pay correctly and the mistake was with the payroll company? In which case they are recovering losses made as a result of their own mistake, and are very unlikely to have any case to be gracious at all.