Employer is taking me to court for wages overpaid

Blackglove

Can I please ask your advice?

My sister worked for an employer until 2019 on a part time basis but was regularly rostered for extra hours. Her employer then told her she had been overpaid for around 2 years (not sure of exact dates but can clarify if needed.)

The employer (carer industry) told her she needed to repay the overpayment which they claimed was around £13k. My sister offered £50 per month taken from her wages which they refused as it would take too long to reclaim the overpayment. My sister has 2 children with the eldest having complex special needs, her husband works part time as they both look after the children between them.

Eventually, her employer agreed to take the £50 per month until she left the business. She tried to discuss with them about repaying after she had left but they were less than helpful. Nothing was heard from them until 3 weeks ago when she received a telephone call from them stating they were going to pursue the overpayment through court.

During her employment with the caring company, her and her husband were in receipt of disability benefits for their daughter as well as being eligible for tax credits/child tax credits. The working tax/child tax credits were stopped as she was earning above the threshold for help. (We now realise this was because of her overpayment). 

My question is not to avoid paying, but what rights she has, if any. Their tax credits were stopped due to the employer overpaying her, she also paid tax on those earnings yet the employer is seeking the full amount. Is there any responsibility on the employer here?

I have read her the riot act regarding this. I have said that she must have known her wages were too high for what she should have been paid, however, both her and her husband said it was difficult keeping track of her hours as the company seldom got the payslip right, not paying enough overtime hours one month, then adjusting the following month. 

Today she has received a county court judgement pack through the post and has got herself into a right mess about it. She really does not know where to start. They have a mortgage which is now on SVR as their fixed rate has expired. They are living hand to mouth and now relying on foodbanks/family to get through. 

Thank you to everyone in advance, all and any help/advice is gratefully appreciated.

I am currently trying to help with the income/expenditure form as this needs to be sent back to the court within the next 10 days but want to make sure there is nothing else we should be doing first. Citizens Advice have been no help at all.

Brie

I don't know enough to advise how to handle this but I would suggest she send a subject access request to the company so they have to provide her with every single bit of information they have about her.  This will include any correspondence and payslips showing all the adjustments.  At least with this she will be working from a position of knowledge and better build her case.

Check also if she has legal cover as part of her car/home insurance or via some employee benefit.  That will help so she can understand any legal issues.

Must admit I find it hard to believe that anyone would simply begin court proceedings without some negotiation first.  I would hope that if she can prove she tried to come to an arrangement and they wouldn't engage that a judge would be less than sympathetic to the employer.

Blackglove

Thanks Brie. #

I didn't think of the home insurance idea, may be worth a shot. 

She had nothing but trouble when she was working for them, so I was not shocked in the slightest that they took this action. I told her back at the start to open communication with them to try and resolve but they (employer) had no interest at all. They initially wanted to reclaim over £400 a month!

She admits burying her head in the sand after she left as she hadn't heard from them, and I completely get that, been there myself in the past. 

74jax

If she only worked part time, and over 2 years was paid 13k MORE than her salary, surely she would have noticed this, even if it was never regular, you'd notice an extra 13k surely.....
Therefore, as she didn't, is she sure she owes it?  If the payments every other month were correcting the previous month and she was checking this (she knew it was wrong one month, but adjusted the next) she would spot 6.5k a year more going on her bank - if she didn't expect it. That's the key, it appears to be what she expected (and her husband) so they need to double check she owes it. 
She needs every pay slip, a list of the hours they say they she worked, and a list of each month they say she was overpaid. Only with this breakdown can she know they are right. 

NCC1701-A

Ha she stopped paying the ex-employer the £50 a month, if so, I'd suggest she restarted that, as that will be important to the court and might stop the company from going to court.  Then as others have suggested, get all the facts, and do the actual calculations (and remember tax & NI & pension etc) and establish just what is actually owed, if anything.

Exodi

74jax said:

If she only worked part time, and over 2 years was paid 13k MORE than her salary, surely she would have noticed this, even if it was never regular, you'd notice an extra 13k surely.....
Therefore, as she didn't, is she sure she owes it?  If the payments every other month were correcting the previous month and she was checking this (she knew it was wrong one month, but adjusted the next) she would spot 6.5k a year more going on her bank - if she didn't expect it. That's the key, it appears to be what she expected (and her husband) so they need to double check she owes it. 
She needs every pay slip, a list of the hours they say they she worked, and a list of each month they say she was overpaid. Only with this breakdown can she know they are right. 

To follow on from 74jax's stance, carers aren't notorious for being paid a lot of money and your sister was part time.

£13k over 2 years is over £500 overpayment a month - potentially this could have nearly doubled her wages. It beggars belief that she did not realise.

Where did the money go? If it was just absorbed by the household, then it sounds like the sister also has a looming financial problem as presumbly there's now a £500+ a month hole.

I know the OP said they read the riot act and the sister had trouble keeping track of this, but I think we just have to assume they knew. I've been on these forums long enough to know that every single person posting that their relative was 'completely unaware' of every debt that appears out of the blue isn't realistic. Even if she did protest no knowledge, I think most judges would reasonably conclude she did by the fact she was paying it back - most people don't pay debts they don't owe

I think the most important thing is, why did the £50 p/m payment arrangement end when she left the business? Was that your sisters decision or the employers?

A court would take a dim view if the employer ended a payment arrangement to pursue them through court, especially if they were aware of her circumstances.

Edit: daughter to sister!

TELLIT01

If the OPs sister continued with repayments when she left employment, or the payments were refused by the former employer, they would seem to be in a much stronger position if it went to court.  They had acknowledged the debt and were repaying it.  I agree that the court would be likely to take a dim view of the previous employer.  However, if the OPs sister simply stopped paying after leaving the employment, the attitude of the court could be very different.

Note: edited to change 'daughter' to 'sister'

Undervalued

Blackglove said:

Thanks Brie. #

I didn't think of the home insurance idea, may be worth a shot. 

She had nothing but trouble when she was working for them, so I was not shocked in the slightest that they took this action. I told her back at the start to open communication with them to try and resolve but they (employer) had no interest at all. They initially wanted to reclaim over £400 a month!

She admits burying her head in the sand after she left as she hadn't heard from them, and I completely get that, been there myself in the past. 

Not uncommon but also remember you are only hearing one side of the story.

Obviously she needs to check carefully that the employer's calculations are correct. Assuming for the moment they are then she has no legal right as such to "easy payment terms". That said, she can't pay what she doesn't have and if it goes to court she will only be ordered to pay at a rate that the court assesses she can reasonably afford. However there will be some court cost added to the debt.

breaking_free

Why are so many people referring to a daughter?

Blackglove said:

My sister worked for an employer until 2019 on a part time basis but was regularly rostered for extra hours. 

Undervalued

breaking_free said:

Why are so many people referring to a daughter?

Blackglove said:

My sister worked for an employer until 2019 on a part time basis but was regularly rostered for extra hours. 

Possibly because there is a reference to the sister's daughter in the OP?

Although you are correct it doesn't affect the validity of the advice offered.

TBagpuss

Has she had a JUDGEMENT or a CLAIM? If it is a claim, then she needs to defend it, although she may have shot herself in the foot if she previously admitted that the money was owed.

IF it is a a Judgment, did she recive the claim for and other documents? Did she respond? Gertting some advice uregently form a lawyer would be sensible. IF they have any legal cover that may help, if not, check whether there are any local law clinics. Some courts have systems where very limited free advice is provided from lawyers volunteering at court althoug hI think normally only on the day of your hearing .