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Overpaid in error for 5 years ! Help please.

(45 Posts)
ginorwine Fri 12-Feb-16 00:11:49

My employer is a county council .there was a pay scale restructure 5 years ago which meant that my grade stopped at grade 8 . At which point a bar was imposed on any pay rise apart from standard of living pay rise . some workers wanted to progress thro this to grade 9 which was a new role with additional duties , were interviewed and given this grade .i was happy to stay at grade 8 .
I got a call to say there was an error and I passed through the bar as if o was grade 9 and as such had been given an increment each year .i had assumed this was the standard of living rise as I assumed I could not go thro the bar as it was blocked to my grade .
So now I find I have
A reduced wage - quite right as it was never really mine .
But on top of that a dept which they want to recover which will have significant impact on us as it will add up to less 300 pm with reduction and dept
I rang acas and they said there was a possible challenge I could make as there was a case of Lincoln social services v .. Acas cdnt re all - and the person won the case as they had made decisions based on what they thought their income was when they too were paid wrongly .
I'm in too minds wether to challenge as I was overpaid but equally this will have serious consequences for us .acas said they thought this was a legal mistake . Any employment lawyers out there please ,? Thanks .

ginorwine Fri 12-Feb-16 00:13:15

Two minds not too ! Tired .

whatstheplanphil Fri 12-Feb-16 00:36:54

Watching with interest as a very similar thing happened to me, I paying back a small amount monthly, I also work for a county council ,

Fozzleyplum Fri 12-Feb-16 00:40:57

There is case law on this. Iirc there's an argument to run if the overpayment was genuinely unnoticed by the employee. Will have a look and post in the morning unless another lawyer beats me to it.

laineylou Fri 12-Feb-16 00:48:44

This article is v helpful - employers can't just decide to deduct money from your salary. Did you query the original rate?

GreenSand Fri 12-Feb-16 01:01:25

If you dont want to argue the overpayments, can you make them an offer? Accept the pay decrease, but say that the deductions on top of that are too much to adjust to in one jump, as you've based your life on your current income.
Offer a token £20 a month off the overpayment?
I don't have any legal training.

ginorwine Fri 12-Feb-16 08:35:53

Yes I would so appriciate it if you could look up the case law .
Also , if I decided to challenge , would I need a solicitor as I would be taking on a huge organisation .
Thanks .

ginorwine Fri 12-Feb-16 08:43:00

Laine - good article - thanks.

Fozzleyplum Fri 12-Feb-16 08:50:12

As I suspected, there's a long line of case law on this point.

Here are some pointers:
- Employer can recoup if there's a contractual clause entitling them to do so.
- In the absence of such a clause, the situation is more complex. The employer might not be able to recoup if the overpayment is historical, was not the employee's fault, if the employee had no inkling that he was being overpaid, and if he has spent the money.

If your employer tries to recoup, you can bring a claim for breach of contract. The employer might then apply for set-off (ask the court to cancel out any damages for breach by ordering restitution of the overpayment). The court would consider the factors listed above.

How much have you been overpaid in total?

DollyTwat Fri 12-Feb-16 08:51:41

I was over paid when I started my job. I work 30 hrs a week and they'd paid me full time salary. I noticed straight away and told them and paid that back. However, they didn't actually make the change

Stupidly I assumed they'd done it and didn't check. So I noticed 6 months later.
In my case I went and explained that THD had much bigger implications than just paying it back as it affected my child tax credits etc

They agreed to me only paying half back as it was their fault. Might be worth trying to negotiate that kind of deal?

ginorwine Fri 12-Feb-16 09:31:25

I'm not sure yet as the increases were relatively small in the first year,, more the second year , and so on for 5 years .
Increments getting bigger and bigger .
Hr have told me that it's 58 weeks equililent of overpayments but I don't know exactly what that is yet .i earn 15 k as part time .30 k f t .
They have said they normally agree to a pay back over the period the mistake was made ie 5 years but in this case they feel it is too long - I guess in case I retire - ! am in 50 s -and they are saying they are going to invoice me for the total and then I need to ring them . To negotiate I wd presume .
We have a son about to go to uni and decisions were made on what I really thought was my income .

ginorwine Fri 12-Feb-16 09:33:47

Dolly I may try - thanks .i won't get child tax credits I don't think but I don't know as I guess - I will be 300 pounds down monthly with the reduction and say 100 pound repayment .i will argue for it to be less as may cause financial problems.

ginorwine Fri 12-Feb-16 09:37:25

Do I need to get a solicitor if I have to go to court ?
I've been in court via work before but never re myself .
I do work a little with the law - eg mental capacity act , and would be more than willing to study if I understand the basis of what I'm looking at .
I'm not sure what your post means re how I protect costs etc - costs being a major concern for me at the moment .

ginorwine Fri 12-Feb-16 09:44:02

In the first instance I presume I have to ask my employer for evidence of contractual right to recoup .
In writing .
If they do have that right , would I then assume that I have to repay in full and start negotiating how I pay it ? Or could I negotiate around paying some but not all back - if do - on what grounds? My genuine grounds are they made a mistake for a long time and this will have a significant financial impact on my family . I didn't spot it because it didn't suddenly go up it was gradual which until I hit the bar- well didn't in fact due to error - that was the similar pattern may wages followed for many years .

Wondermoomin Fri 12-Feb-16 09:50:05

You should have a copy of your employment contract yourself, so check what it says. It's a pretty standard clause in all the contracts I've had.

ginorwine Fri 12-Feb-16 09:58:43

Wonder - thanks .
Have worked for them for 29 years so it's probably covered I dust somewhere 😄

Pteranodon Fri 12-Feb-16 10:06:56

I am so shocked that they can demand it back when it seems clear you accepted it in good faith. (I not a lawyer)

ginorwine Fri 12-Feb-16 10:21:45

Pter - me too it will have massive effect on family .
However , part of me thinks I should have checked but the fact is I saw it but what I thought I saw was wrong .to add insult to injury they are also applying this to overtime I did to help the dept out when staffing was at a crisis and I may not have done that additional work as the impact on me wasn't worth it even at the higher wage .

ginorwine Fri 12-Feb-16 10:23:27

Some service users refuse to pay ar challenge and I do know that things get written off for them a significant number of times .may e staff are not members of the public ? 😔

Fozzleyplum Fri 12-Feb-16 13:37:40

OP, I've just typed a longish response and the bloody kitten has walked over my keyboard and deleted it before I'd finished! As I'm working today (one of my offices is at home, hence kittens), I don't have time to type it all again. If you'd like to PM me with your number, I'm more than happy to tell you how I would approach this.

BikeRunSki Fri 12-Feb-16 13:47:28

Are you in a union? Or do you have legal cover on your household insurance?

ginorwine Fri 12-Feb-16 14:02:00

Fozz - thanks c v much .

ginorwine Fri 12-Feb-16 14:02:57

Yes I'm in unison - they said I wd need to repay but argue re hardship.

redmimi Fri 12-Feb-16 14:10:47

Have a look at the principle of estoppel in relation to overpayments, which relies on the defence of the payment being taken and spent in good faith over a long period of time.

BeStrongAndCourageous Fri 12-Feb-16 14:15:31

They're trying it on. I've been involved in a few similar cases, from the HR side, and you always say that the employee had to pay back the full amount, in the hope that they'll meekly accept it and start repayments. But they will know they are on very dodgy ground as the error was their's and went on for such a long time - it has been successfully argued in the past that after such a long period of time, that has now become your salary by default - and chances are they'll be open to negotiation.

Make them an offer for what you are prepared to pay back - and make it a low one, so you have room to haggle. I honestly think they will be expecting this - I've been part of too many "ask them for the full amount, worse they can say is no, then try for X amount" conversations with senior managers in these situations.

On more than one occasion we've written off the debt as the cost of fighting the employee over it is higher than the overpayment.

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