Former Employer 'Overpayment of Salary?'

ndf9876

Exodi wrote: »

Sorry but I think overpayments by employers are pretty black and white and this forum usually provides short shrift to those questioning their liability towards them.

I appreciate sympathetic replies because of the compensation situation but ultimately it's an entirely unrelated affair and you should be making as many preparations as possible to pay this back.



???

The OP said they'd been dismissed due to capability and compensation had been agreed.

Thank Christ he didn't die. I suppose you'd suggest that the employer is still required to keep him in employment and pay him a salary.

Read the original post on which my response was based :

"My husband was dismissed by his employer two years ago, as he was unable to do his job, due injuries sustained at work"

Then there's this little gem I found on the Employment for All website :

"Under UK law, you cannot be dismissed from a job following an accident at work that left you injured and you decided to file a compensation claim against your employer".

Bet you're fun at parties with that attitude of yours.

Gavin83

ndf9876 wrote: »

"Under UK law, you cannot be dismissed from a job following an accident at work that left you injured and you decided to file a compensation claim against your employer".

Except that wasn't the case here, he was dismissed as he was no longer able to do the job due to his injuries. He wasn't dismissed for making a claim against his employer.

Are you honestly suggesting that an employer has to continue employing someone for the remainder of their life even if they are unable to do the job?

Blatchford

ndf9876 wrote: »

Read the original post on which my response was based :

"My husband was dismissed by his employer two years ago, as he was unable to do his job, due injuries sustained at work"

Then there's this little gem I found on the Employment for All website :

"Under UK law, you cannot be dismissed from a job following an accident at work that left you injured and you decided to file a compensation claim against your employer".

Bet you're fun at parties with that attitude of yours.

They might not be a lot of fun at parties, but they would be correct at parties, unlike you! You cannot be dismissed for exercising a statutory right (in this case, the right to claim compensation for a wrong), but you can certainly be dismissed for being unable to do your job, whatever the reason for that is.

What was that about people with an attitude again? Attacking others for being right really isn't a very nice thing to do, although it seems to happen a lot around here I think. Argument weak, shout here seems to be common.

Manxman_in_exile

Blatchford wrote: »

...They then assumed that there were reasons for them to continue to receive almost half a years salary [I may have missed this, but where are we talking about half a year's salary? In the OP only two months is mentioned - the other payment being properly due in arrears?] after having been dismissed, although there was no real reason to make such assumptions...

Regardless of what the poster thinks, employers do not get fined for incompetence. If they did they'd mostly go bust! ... [It's a government employer. Having worked in the public sector for over 25 years I think there should be a responsibility on them to avoid incompetence. Do you disagree or do you think the public sector can do no wrong?]

That said, picking up a curious small detail, the poster said that the finance company are taking legal action. Not the employer... [I'm not sure the OP appreciates the difference between the "Finance Company" and her husband's employer. And what difference does it make?] QUOTE]


I think the onus is on the employer to establish when the employee was dismissed (they didn't resign).


If the OP is to be believed, the ex-employer (or the "Finance Company" - the OP is disappointingly unclear on this) has said that her husband continued to be an employee due to errors made by someone - I don't know who, the OP doesn't know who and perhaps the ex-employer doesn't know who. But the OP's husband was told that they had continued to be employed (whether these were the words actually used none of us - except the OP and her husband - actually know) and this dragged on for ten months with no explanation from the employer.


Having worked in the public sector for over 25 years and having had to deal with overpayments from both sides of the fence, I would fight this. If the government department or their outsourced payroll provider are so incompetent as to not be able to sort out a simple payroll error, yes - they should not be able to recover it. In the NHS employee termination (:)) is well documented. If other public sector managers **** it up they should carry the can.

Blatchford

Manxman_in_exile wrote: »

Blatchford wrote: »

...They then assumed that there were reasons for them to continue to receive almost half a years salary [I may have missed this, but where are we talking about half a year's salary? In the OP only two months is mentioned - the other payment being properly due in arrears?] after having been dismissed, although there was no real reason to make such assumptions...

Regardless of what the poster thinks, employers do not get fined for incompetence. If they did they'd mostly go bust! ... [It's a government employer. Having worked in the public sector for over 25 years I think there should be a responsibility on them to avoid incompetence. Do you disagree or do you think the public sector can do no wrong?]

That said, picking up a curious small detail, the poster said that the finance company are taking legal action. Not the employer... [I'm not sure the OP appreciates the difference between the "Finance Company" and her husband's employer. And what difference does it make?] QUOTE]


I think the onus is on the employer to establish when the employee was dismissed (they didn't resign).


If the OP is to be believed, the ex-employer (or the "Finance Company" - the OP is disappointingly unclear on this) has said that her husband continued to be an employee due to errors made by someone - I don't know who, the OP doesn't know who and perhaps the ex-employer doesn't know who. But the OP's husband was told that they had continued to be employed (whether these were the words actually used none of us - except the OP and her husband - actually know) and this dragged on for ten months with no explanation from the employer.


Having worked in the public sector for over 25 years and having had to deal with overpayments from both sides of the fence, I would fight this. If the government department or their outsourced payroll provider are so incompetent as to not be able to sort out a simple payroll error, yes - they should not be able to recover it. In the NHS employee termination (:)) is well documented. If other public sector managers **** it up they should carry the can.

I didn't suggest they should give up. But there has to be one of two grounds. Either the employer is acting illegally, and they are not obviously doing so; or on compassionate grounds. Regardless of any opinion, public sector employers do not have a duty not to make mistakes. You may think there should be a responsibility not to make mistakes. There is no such responsibility.

If the OP wants to fight it, then they should do so on grounds they may win. Given that it seems legal proceedings are being instructed, then if they are going to argue they don't owe it they need legal advice on that, as that defence is exceptionally weak. As I and several others have suggested they do. Of course, if they fight and loose on those grounds, they end up owing even more money.

It may be that you are correct and it isn't as much money as I thought they suggested. I agree that the poster isn't always clear and may not understand. Perhaps nobody should make comments on anything until everything is 100% clear and accurate, in which case nobody should ever say anything?

Being angry about public sector employers making a mess may make you feel better, but it doesn't present a case the poster can use. What the posters husband claims was said verbally by someone who was not the employer or the manager dealing with the dismissal does not really stand up to scrutiny in legal terms, and the employer themselves did provide the termination date and never said that the party would continue - that is an assumption that was made without any grounds.

I still think that if it is the employer to whom the money is owed, an appeal to their better nature, whether you think they have one or not, is the best strategy. There is nothing to lose except being taken to court for a debt that, in all probability, the court will uphold. Because the court doesn't care about what you or I think about their competance, and estoppel as a defence very rarely succeeds.

Manxman_in_exile

Blatchford wrote: »

Manxman_in_exile wrote: »

I didn't suggest they should give up. But there has to be one of two grounds. Either the employer is acting illegally, and they are not obviously doing so; or on compassionate grounds. [I think that is flawed thinking. How can the employer be acting "illegally"? There is no criminal offence in trying to claim a debt you think you are owed unless you are acting dishonestly. I think jobbingmusician was mistaken in even thinking it could be unlawful. The question is whether the employer has grounds for claiming it. I agree on compassion though.] Regardless of any opinion, public sector employers do not have a duty not to make mistakes. You may think there should be a responsibility not to make mistakes. There is no such responsibility. [That is correct. It may be relevant in deciding whether the OP's husband has to repay the money, however, if the employer has said, mistakenly, that they were still employed].

If the OP wants to fight it, then they should do so on grounds they may win. Given that it seems legal proceedings are being instructed, [Where is it suggested that legal proceedings are pending? The OP has not said that they have received any such notification. It may very well happen but it has not been said so far.] then if they are going to argue they don't owe it they need legal advice on that, as that defence is exceptionally weak. As I and several others have suggested they do [Including me in at least two posts]. Of course, if they fight and loose [lose] on those grounds, they end up owing even more money.

It may be that you are correct and it isn't as much money as I thought they suggested. I agree that the poster isn't always clear and may not understand. Perhaps nobody should make comments on anything until everything is 100% clear and accurate, in which case nobody should ever say anything? [I would not make any comment until I've given the OP the opportunity to clarify the position - hence my post #07. Having given them that opportunity that's what my comments are based on.]

Being angry about public sector employers making a mess may make you feel better, but it doesn't present a case the poster can use. [I'm not angry about public sector workers making a mess of things so it certainly does not make me feel better. Having worked as a NHS manager for over 25 years I'm simply disappointed at such (according to the OP) incompetence. Mistakes happen but this has taken too long to rectify.] What the posters husband claims was said verbally by someone who was not the employer or the manager dealing with the dismissal [where does the OP say that? You are assuming it was the "Finance company" and not the employer. Admittedly the OP is unclear but you seem to be reading what hasn't actually been said.] does not really stand up to scrutiny in legal terms, and the employer themselves did provide the termination date and never said that the party would continue - that is an assumption that was made without any grounds.[Er - I may be mistaken but where has the OP said that the employer "[I]did[/I]" provide a termination date? Sorry if I've missed that, but I'm going on what's been posted, not what I assume.]

I still think that if it is the employer to whom the money is owed, an appeal to their better nature, whether you think they have one or not, is the best strategy. [That may well be the best strategy of least resistance, but according to the OP, it's not the employer but the "Finance Company" who are asking for the repayment. I'm not sure how they can do that as I presume they have no relationship with the employee apart from a simple transactional one.] There is nothing to lose except being taken to court for a debt that, in all probability, the court will uphold. Because the court doesn't care about what you or I think about their competance, and estoppel as a defence very rarely succeeds. [True, but not unknown.]

I'm not necessarily disagreeing with the general gist of your post, as in most instances trying to fight a reclaim of overpaid salary is a losing case. It just seems to me that, based on what the OP has said, I would personally challenge it. They (according to the OP) notified the "finance company" and employer immediately of the payments and were told (according to the OP) that the OP's husband was still employed (I agree that it's not exactly clear what this means, but as you say, we can only go on what we are told, and not what we - or you - assume). Again (according to the OP) there was correspondence with the employer over a period of ten months as to what these two payments were for, but the employer was incapable (according to the OP) of satisfactorily resolving the situation. Public sector workers make mistakes all the time (I've probably made more than I'd care to admit to) but this employer would appear to have had more than adequate opportunity to put this right at an earlier stage (assuming what the OP has said is complete and accurate) and failed to do so.


Neither I nor you know any more about this than what the OP has posted (and I'm not assuming anything except that they are being accurate having asked them to clarify the position), but based on what has been posted I would say "sue me" if I were confident that I had done everything I could to query the payments over a ten month period and the employer had failed to explain to me that it was an overpayment because they'd failed to terminate my employment in accordance with their procedures. There has to be a line drawn somewhere as to when an overpayment is the employer's responsibility (it is after all their procedures they are following) not the employees, when the employee has taken reasonable steps to clarify the situation


But I'm just saying what I would do and I'm not suggesting the OP should do what I would.

Undervalued

ndf9876 wrote: »

Then there's this little gem I found on the Employment for All website :

"Under UK law, you cannot be dismissed from a job following an accident at work that left you injured and you decided to file a compensation claim against your employer".

Bet you're fun at parties with that attitude of yours.

Oh dear....

Just reading "law" on websites only gets you so far without some understanding to back it up!

Whilst the employee cannot lawfully be dismissed (which is not the same as "can't be dismissed"!!) BECAUSE they have made such a claim they most certainly can be dismissed if they are unable to do their job. That is regardless of how that incapacity came about.

If they are dismissed and their injury claim is successful they can expect to get a higher level of compensation as their losses are obviously greater. However that is another matter.