salary overpayment and repayment

bkclive

I do sympathise as I'm in a similar position, but the big difference is that I have left the company where the overpayment took place, which means I can use the three points you mentioned above to defend paying back the money. Regrettably if you are with the same employer they have an absolute right to recover the over-payment, and the only leeway that you have is to negoiate repayments so you are not left in hardship.
Presumably the others that find it so hard to believe over or under-payments are hard to detect must have better organised employers/pay departments

Sulli

I read this post with interest. My wife is in a similar position, and I believe she can demonstrate all 3 points in the post above.
Basically, she was working 15hrs a week in a call centre prior to going on maternity leave. She was off for a year during which time her pay was at 3 differemt rates - a short period at enhanced, a few months at statutory, and a few months at no salary. Her pay rate was also subject to a cost of living increase during that period.
Prior to returning to work she request a reduction of 2hrs to 13 hrs a week, which was accepted.
She returned to work, last November, and was paid as normal. As she earns very little, pays into a pension as well as tax and NI, and there was a cost of living increase, we never noticed whether the pay was correct - it was certainly no higher than previously paid. The payslip does not detail hours worked.
In July she was informed that she had been overpaid due to the employer's mistake, after she had requested another reduction in hours to 12. The employer has admitted it was their fault. They satted they were going to start taking the money back from the next pay packet.
My wife wrote to them stating that she could never have reasonably known of the overpayment, it was the employer's mistake, and that the money was spent and particularly now that she was down to 12 hrs, the deductions they are suggesteing would cause hardship - we have 3 young kids.
They wrote back, ignoring all that and citing her contract - standard term regarding recoupng of overpayments.
She has previously suffered what I deem to be discrimination due to being a part-time working mother, and has challenged them formally on this (not a grievance), and they have capitulated.
My advice to her now is to raise the issues as a formal grievance, stating that she would regard any deduction as a breach of trust and confidence and unlawful deduction of wages, which she will challenge. Also, to allege that as she was off on maternity, is part-time, she could never have known, in contrast to a full-time worker who had never been on maternity leave; so has suffered discrimination.
They are a poor employer, but she needs the job and we need the extra money it brings in.
Any advice or ideas?

SarEl

Yes. It's an interesting argument but it won't wash legally. It is not a defence to claim that it is discrimination because as a part-time working mother she couldn't be expected to know what her pay was supposed to be. It wouldn't get as far as the solicitors office.

The law is clear that an overpayment, however derived, may be reclaimed. She can argue about it and see if they will mediate - but in law she doesn't have a leg to stand on. If they will not give up their claim then she can reasonably ask for installments to be agreed, citing the fact that it would cause hardship to pay it back at once. But in the end she is working and it is not unreasonable in law to expect her to pay it back. In very limited circumstances a court may not order repayment if there is no prospect of the person being able to pay it. But this very rarely happens, and certainly not in cases where a person is in work.

Sulli

Cheers, but having satisfied the 3 points, surely this would satisfy an ET that the recouping was unreasonable? Or what are those 3 arguments to be satisfied?
On another note, I deal with employment issues regularly and have discussed this with our HR dept and we all agree that we would never recoup in such circumstances, and would just write and advise of the mistake and that salary would be rectified for future payments - it is a piddling amount, to them, to us, as hours are reduced again, it is significant.

SarEl

Sulli wrote: »

Cheers, but having satisfied the 3 points, surely this would satisfy an ET that the recouping was unreasonable? Or what are those 3 arguments to be satisfied?
On another note, I deal with employment issues regularly and have discussed this with our HR dept and we all agree that we would never recoup in such circumstances, and would just write and advise of the mistake and that salary would be rectified for future payments - it is a piddling amount, to them, to us, as hours are reduced again, it is significant.

The advice you are relying on is rather "light" The real world is much more complex than a few lines of advice. In terms of overpayments, ET's (or courts) invariably support repayment unless there is no prospect of recoupment. The ET has no right to consider whether it is reasonable or not - only that the law permits this recoupment, and it is not an unlawful deduction so it does.

Totally agree though that some employers wouldn't bother about it. But that is their discretion to do so - not a legal requirement. As I said before, it's worth arguing the toss, but not worth loosing your job over.

Sulli

Cheers Sarel - see where you are coming from.
In my view it's worth arguing the toss, as they can't sack her for it - and if they do then they are for the high jump. She can pee them off and raise a formal grievance - they may just change their mind rather than go through the convoluted process - or whoever hears the grievance may actually see sense and take the pragmatic view - I know I would if it was my organisation.
That's me though - it's the wife's decision and she may well decide to just accept it and not rock the boat......

SarEl

As you say - sometimes the pragmatic view is the best one, even if you have the law on your side! The law is cold comfort if you loose your job over it.

Sulli

They ended up messing up the grievance process and agreed to 50% repayment - made themselves look stupid along the way too!