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Ex employer claims I've been overpaid

(17 Posts)
fairyjasmine Tue 24-Nov-15 10:14:46

This is a long story so I'll try and make it as brief as possible:

I worked at the same company for over 5 years, and I was in quite a senior role for the last 3.5 years. I'd never had a written contract with them but my hours were consistent. It was a termtime only position but my projected annual income was averaged out so I'd get the same "basic wage" each month regardless of whether it was school holidays or not. 5/6ths of this money was paid in to my account by standing order and the remainder was paid by cheque, to allow for any additions/deductions.

We had to leave our premises this Summer. It was agreed that a new building would be funded for us and this was due to be ready by early September. As often happens in these situations that date was pushed back further and further by the builders... late Sept, early Oct, mid Oct etc. I was informed of this delay towards the end of August. I asked my manager what would happen about pay, and confessed that not being paid would be an issue because as a lone parent I would need an income from somewhere. I wasn't too sure of the legalities but I felt that not being paid could mean that I was no longer their employee and I would need to claim benefits to tide me over until I was able to return to work. My manager didn't know the answer to my question at the time, but a few days later she texted me and said that "money will go in to the bank as usual". At no point were any terms and conditions attached to this - it wasn't made explicit that I would be expected to work for free throughout the year to pay it back. Looking back, my manager did drop a hint or two (e.g. about how she personally didn't mind putting in some voluntary hours when we re opened) but I didn't really get the significance of what she was saying. I'm still not 100% sure now!

As expected, the bank portion of my wage was paid in to my account at the end of September. I did some bits of work here and there which I was asked to keep a record of but it was nowhere near my normal hours. Then, at the beginning of October I was offered another job, which I decided to accept. I was determined to do everything 'properly' despite not having a contract to refer to so I sent a letter of resignation in which I stated that I was giving notice to leave at the end of the month and would fulfill any required duties until that date. Receipt of this letter was never acknowledged and nobody ever told me what I could expect. I did say to my manager that if she didn't want me to work a notice period under the circumstances I understood and I'd find a way to manage financially, but she said "oh no I think it would be nice". At this stage completion of the building was expected 10 days later, so I was fully expecting to do a couple of 'normal' weeks before my last day. As it turned out it was delayed once more and I only clocked up 11 hours for the entire month.

I wasn't honestly sure whether I'd get paid for October or not under the circumstances, but the money went in to my account as normal and I assumed they'd made the decision to pay me for my notice period. I now realise that this is a legal obligation anyway, even if the employer doesn't have any work to offer. My employment has now ended and I've started my new job.

HOWEVER... I've been having real trouble getting my p45 and last couple of wage slips out of them. I've been told by the chairperson that they'd be sorted out by the end of the week, that she'd phone me, that she'd put them through my door... nothing has materialised. Last week, out of the blue, my ex manager phoned me and asked me to do some work related things for her. I was completely baffled by this, but she explained that my money wasn't meant to have gone in to the bank for October (this was 23 days after the payment had cleared in my account!!) and "don't worry about it, I'll just get you doing a few things for me instead." I couldn't believe it! Fast forward to this week and I finally managed to catch the chairperson (by bumping in to her - otherwise I imagine I'd still be in the dark). She told me that there had been an overpayment of over £850 between the two months, that October's money was meant to be stopped but the bank paid it to me anyway, that the manager was intending to get me to do some IT related work for her to make up September's shortfall, but October was very much an overpayment. I was completely lost for words. I told her that this money has now gone and I can't just hand it back, which she appreciates, and she said she'd go back and have a discussion about what they expect me to do about it.

I've spoken to ACAS and they said that despite not having a written contract, it's clear that my contract is X hours per week and that they were obligated to pay me even if they couldn't fulfill their side of the contract by giving me the work, as it's wasn't my fault. Had I been able to go in to work I would have done so. The lady I spoke to also confirmed that I was entitled to be paid for my notice period. However, she did mention the possibility of them taking court action against me if I refuse to accept their proposal on how to resolve this, and I'm really scared. Even if things don't progress that far, I have visions of them turning lots of people against me for screwing them over and refusing to give the money back (I suffer from social anxiety so I'm not sure if this is something I'm blowing out of proportion, but realistically it could happen).

All I want to do, really, is what is right. I don't feel it's right to retrospectively attach terms and conditions to this money because had they made it clear what their expectations were from the beginning, I wouldn't have accepted it and I'd have started looking in to what benefits I could claim. I also really, REALLY don't want to be obligated to do any work for them ever again! I just keep going over and over it, worrying that I've missed something vital somewhere along the line, rehearsing what I'd say to them in this scenario and that scenario, but what worries me the most is that the chances are I will be unable to say any of it at all and burst into tears instead (stupid anxiety). I've requested my P45 several times over the past few weeks - pay roll at my new job need to see it, as do the council, but nobody seems to care about these deadlines or the stress they're causing me. If they suggest I pay back X amount per month until the 'debt' is cleared it probably wouldn't be the end of the world, but surely it can't be right?! What on earth do I do?? At this stage I'm waiting to see what they come back with but I would like to be as prepared as possible.

If you got to the end of that, thank you for reading blush

Kr1stina Tue 24-Nov-15 10:29:24

Listen to the ACAS person. It's their mistake - they sound totally incompetent TBH. They were required to issue you with a contract and to pay you your usual salary , the fact that they could t give you work is their problem not yours .

I'm sure any half decent lawyer will tell them that they don't have a case . Also they would be mad to litigate for £850 , their costs could be more than that and if they lose they will have to pay your costs too .

I'd sit tight and let them deal with it. Dont offer to pay anything back . Don't get into any discussion with them about this .

In the unlikely event that you get a lawyers letter from them, take it to ACAS and ask for their advice .

I hope your new job is with a more reputable organisation and that you enjoy it

fairyjasmine Tue 24-Nov-15 10:57:45

Thank you Kr1stina. While it helped to hear it from ACAS, they were a little bit more on the fence than you've been wink and I really needed to hear this. I hope it makes no difference that I was paid an hourly wage rather than a salary?

Yes, thankfully my new job is completely different - I signed a contract in my first hour and the difference it makes to finally feel like a proper employee is astounding!

Kr1stina Tue 24-Nov-15 11:45:22

Did you do roughly the same number of hours each week ? How did it work - did you submit a time sheet ? Or was it understood that you worked eg 25 hours a week so you got paid the same every week / month ?

I'm not a lawyer BTW, just an employer with a small number of employees .

fairyjasmine Tue 24-Nov-15 12:14:38

Yes, I worked the same set number of hours each week from Sept 2013 onwards - a very slight increase (enough to show an difference of <£30 per month on my pay slips) on what I worked in the year before that. There were timesheets but for some reason we didn't complete them ourselves - they were completed by the manager, often a couple of weeks past the deadline, which had a knock on effect on when we could expect to see our wage cheques hmm.

Lonecatwithkitten Tue 24-Nov-15 13:15:45

I'm guessing small charity with well meaning committee, but no one with any employment law experience. They can not stop your pay because they were unable to provide work without going through a certain set of very specific actions and they need to pay your notice.
A single well phrased letter from a solicitor will likely save you a lot of stress and put this to bed.

WhoTheFuckIsSimon Tue 24-Nov-15 13:19:47

I would make it very clear that I wouldn't be paying a penny back.

You were working for them, you were available for more work which they were unable to provide and you worked your notice which they're legally obliged to pay you for.

That would be my thoughts but I'm no expert at all.

Kr1stina Tue 24-Nov-15 18:22:40

In that case your position is very secure, whether or not you have a contract or are paid hourly , weekly or monthly . If you've worked the same hours in the same job for two years, then your terms and conditions are established . As other have said, they need to pay you for you notice period and for any outstanding annual leave .

TheExMotherInLaw Tue 24-Nov-15 18:31:17

plus I think they are on dodgy ground withholding your P45

thecapitalsunited Tue 24-Nov-15 20:31:46

Not related to your overpayment but I think the taxman will be interested to find out P45s aren't being sent out. It's sometimes a sign because the employer hasn't been paying tax and NI properly so HMRC likes it reported so they can check thats not the case. I hear tax audits are always really fun!

fairyjasmine Wed 25-Nov-15 13:56:31

Thanks all. It actually sounds like I was underpaid rather than overpaid because I only had 5/6ths of my usual wage for September and October. I don't think it's worth the hassle of pointing that out, though!
Lonecat - spot on!
I really think the delay to my p45 being handed over is due to lack of time and confusion on the part of the person responsible rather than anything untoward... although that said, when I went through my paperwork recently I only found two P60s out of a possible six. I knew I hadn't received all of them but that's really quite poor isn't it?

Clobbered Wed 25-Nov-15 14:03:12

Stick to your guns and threaten to report them to HMRC if they don't hand over the P45 pronto. They sound clueless and disorganised, and I wouldn't give them a penny piece. Not having a P45 won't prevent your current employer from paying you, they will just have to use some sort of emergency tax code and sort out any differences later.

Lonecatwithkitten Wed 25-Nov-15 15:13:09

Fairy almost certainly a solicitors letter including that you have been underpaid may scare them as depending how they charity is structured they may actually end up personally liable if it went to tribunal and found for them.

Kr1stina Wed 25-Nov-15 17:21:23

How much is 1/3 months salary ? If it's more than A few hundred pounds it might be worth going to a solicitor .

Personally I would try to get free advice from ACAS or elsewhere first , and then write, by recorded delivery , to your employers . Maybe ACAS could helo you draft a letter .

If you do decide to go to a solicitor , try to get an idea of the cost upfront . Then write out a detailed explanation of what happened and take it to the solicitor with you , along with any relevant document eg payslips , letters from employers, notes of conversation, emails .

It's not worth going to court over, but it might be worth a £200 bill for one short meeting and a letter .

BTW don't discuss this on the phone or face to face with your former employer . Try to do everything by email , so you have a paper trail .

fairyjasmine Thu 26-Nov-15 09:19:17

Underpayment is just over £200 between the two months, so not worth chasing. I really don't want to fall out with anyone, although I fear it's inevitable - it's a small community and I will be bumping into these people constantly. A solicitor would be a last resort but I won't discount it smile

A friend suggested that perhaps I could ring HMRC, explain the situation and try and ask if they can send a copy of my P45. I suspect that's not how it works, but could it be worth a try?

MaybeDoctor Sat 28-Nov-15 08:52:52

My take on this is that you were available for work and that they should have asked you to work from home during that period Sept to Oct. But if no work was available/organised for you then you should still get paid.

I think a firm but polite letter stating that you were available for work during that period and what ACAS have said is the first step.

fairyjasmine Wed 02-Dec-15 12:10:43

I did do some work from home but due to the nature of the job it wasn't something that was possible to replicate in full (think along the lines of a nurse having to work from home... they might be able to do a bit of paperwork but they'd be a bit stuck without their patients!). I was very much available to work though. I think a letter may be in order at some point, but so far I haven't heard anything more from them so I'll wait and see what happens. I had 2 missed calls from my ex manager this morning but I don't know what that was about and she didn't leave a message. I'm intending to follow advice and keep things to text/letter as much as possible.

After being told that my p45 and pay slips would be put through my door over a week ago, nothing materialised. I left it til Saturday morning and sent the chairperson a firm but polite text message, saying I really do need my p45 and could it be put through my door over the weekend. No reply, no delivery of paperwork. I phoned HMRC yesterday and they said that while they can't issue the p45 for me, they can chase it on my behalf, so I've agreed to that.

I renewed my home insurance last week and have added family legal cover for peace of mind!! Thanks again for all your help.

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