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Original poster

Paying Back Occupation Maternity Pay - Any Experts?

32 replies

tinysleepy · 24/03/2012 17:57

I had this post in money/legal, but no response so thought I would copy it here.
Is that OK?

Hi

Apologies for the long post...
I used to work for my Local Authority and when I was pregnant with my son, thought I would be going back to work at the end of maternity leave and, therefore, took occupational maternity leave.

In the end, I did not go back - I had a premature baby, having had three miscarriages and a husband who had recently had spinal surgery. Also, my mum who were due to look after DS when I went back were nowhere near as reliable or interested as I had hoped in terms of childcare

This was last year and they have finally just sent a letter outlining what I need to repay. Its thousands of pounds (my salary was reasonably high before I left).
In addition they started paying my salary even though I didn't go back, so they are now trying to claw that overpayment back too.
Incidentally, I informed them of all the above at the right time, so they have really dragged their heels getting in touch to sort this out.

The total I now need to pay is huge and I have no way of paying back the lump sum. I have recently started doing some freelance work now DS is older (15 months). My husband earns a decent salary, but after all our outgoings we have sod all left at the end of the month.

My questions are:
Are there any unknown, magical justifications to get out of paying some of it back?
Do I have to include my husbands salary when trying to negotiate paying back by installments?
Has anyone else had to pay back OMP for a Local Authority and if so, what level of monthly payments have they allowed?
Any other advice?

Thanks for you advice

OP posts:
SuperSlattern · 24/03/2012 18:08

Not sure about your OMP, but there is a piece of case law called Estoppel. It's where your employer has overpaid you, however you believed at the time the payments where correct and made in good faith.

Might be worth googling if as you say you told your employer in advance you were not returning yet they continued to pay your salary automatically.

Original poster
tinysleepy · 24/03/2012 18:11

Oh thanks Super, I will look that case law up. They did pay it automatically, even though I had written giving in my notice. Thanks again!

OP posts:
MollieO · 24/03/2012 18:16

Can't comment on the OMP but why didn't you tell them that they were paying you a salary you weren't entitled to? Couldn't you offer to pay that part back now whilst you negotiate the OMP?

KatieMiddleton · 24/03/2012 18:22

That piece of case law is unlikely to apply because you knew agreed to the terms of the oml and you knew the other payment was an error.

Generally in cases like this if a payment has been made in error but the receipient could reasonably have not realised and their circumstances have changed so that they cannot pay it back there could be a case. However, this isn't them paying you an extra £50 a month that you didn't notice. You took their money and agreed to the contractual terms of receiving that money (ie return or pay it back) and the accidental payment after notice was just that. Accidental and you should pay it back.

I think the honourable thing to do is to negotiate a repayment plan with them.

KatieMiddleton · 24/03/2012 18:22

Apologies for typos. Am on phone.

annh · 24/03/2012 18:24

If they started to pay you your salary when you didn't return, presumably you didn't spend it?! I mean you knew what the money was, so while waiting for them to sort it out, you wouldn't have spent money that you knew would have to be returned? So can you not offer to immediately pay back that lump sum and negotiate on the rest? I certainly don't think there is any justification for trying to "get out" of paying back the OMP. It was presumably spelled out quite clearly in your LA policy what the OMP amount was and how it would have to be paid back if you did not return?

KatieMiddleton · 24/03/2012 18:27
Original poster
tinysleepy · 24/03/2012 19:19

Nooooo! I didn't spend it - bit of an idiot but not complete cretin!
I didn't notice it going in because I am a useless wanker and hate checking my bank account.
I intended to pay the overpayment assuming they didn't just love me so much they forgot about it

Its the OMP I am concerned about. I had no idea I wouldn't be returning, but was so utterly besotted by DS that I decided I couldn't leave him with anyone except my mum. I told them that straightaway some six months ago and heard nothing despite chasing them. Six months later a letter arrives laying out the lump sum to be paid back.

I will negotiate, but given its taken them forever to come back to me and wanted to know if anyone else has a record of what I should suggest I pay back and what would be considered too low a payment.

OP posts:
KatieMiddleton · 24/03/2012 19:33

There's no way of getting out of that one. You're bound by the terms of the contract.

I would offer as much as I could afford less 30% to give room to negotiate.

hairytaleofnewyork · 25/03/2012 08:04

Gree with Katie you knew the terms.

First, send them a cheque tomorrow for the over -payments (which you have got stashed).

Write an accompanying letter offering what you cam afford per month less a bit.

You could try explaining that any more could put you into financial hardship.

CherryBlossom27 · 25/03/2012 08:13

If they have overpaid your basic salary and any allowances such as car allowance then you would need to repay these. If you cannot afford to repay in one lump sum, tell them what you could afford to repay e.g £50 per month over 12 months and see what their response is. IME, most employers will be grateful that you aren't kicking up a huge fuss and refusing to repay the overpayment, so they are likely to agree to you repaying over an agreed time period. Generally they would prefer you to repay any overpayment within the same tax year that it was overpaid, but obviously it isn't alway possible.

I have never heard of anyone being asked to repay occupational maternity pay (I have worked in payroll) I will ask my HR friend on Monday and let you know as it sounds really odd to me.

RichManPoorManBeggarmanThief · 25/03/2012 08:13

I don't think you can dispute the amount but I think you can possibly negotiate a payment schedule that is more favourable/manageable. They will not want to take you to court for it as they will incur costs, so being paid in, say, 12 installments is better than not getting paid.

catsareevil · 25/03/2012 08:38

I dont think that you will be able to get out of paying it back.
Have you thought about how much you could repay each month?
Would you be able to pay it all back over a year?

Northey · 25/03/2012 08:52

Did you genuinely not know that if you didn't return to work you would have to pay back the OMP? Is it worth offering an alternative solution - asking your work if they will allow you to treat the intervening period as extended, unpaid maternity leave and come back now to work the qualifying period for you no longer to have to pay back the OMP?

SuperSlattern · 25/03/2012 09:07

However it was the employers fault your salary was started up after you SMP payments. I work in Payroll and I would never automatically start up an employees salary following mat leave. I know it sounds bad but it's whoever instructed/started it up in Payroll's fault.

I would argue that yes you will pay back the OMP, however the salary overpayments were their mistake.

I know people on here will disagree with me, however if you knew what employers try to get away with you would change your view

EdithWeston · 25/03/2012 09:08

As you informed this that it was an error at the time, I do not think you can claim estoppel as it can easily be demonstrated that you knew these were errors.

And as you knew that, I hope you set the overpayments aside (ideally in an interest bearing account - rates are low, but you actually stand to make a small gain from that!); so they can be repaid when asked for.

Yes, you have to pay it all back. After you have knocked off that amount to had identified and set aside, what is the shortfall? Paying most of it off with that lump sum puts you in a strong position to pay the rest by instalments (I do understand the temptation to dip into funds, even when you know you mustn't).

I would say that when negotiating instalments, you should aim for to pay back in about the same amount of time as the liability took to arise: so in your case say about a year?

You must be so relieved that you are in the happy position of having spotted this at the time, and in time to take the necessary action to remove the overpayment from your general spending. I hope this is quickly sorted out.

hairytaleofnewyork · 25/03/2012 14:35

It matters not one iota that the overpayment was their error.

SuperSlattern · 25/03/2012 15:04

Yes it does.

catsareevil · 25/03/2012 15:09

It doesnt make a difference. The OP still has to pay it back.

flowery · 25/03/2012 15:52

OP you mention that they are 'trying' to claw back the overpayment too. Presumably you notified them the first time you received salary, and how long ago was that? If they haven't yet explained to you how they want the overpayment back, just send them a cheque for the total of that straightaway. You have absolutely no justification for claiming you don't need to pay it back, their error or not, for the avoidance of doubt, it's clearly an error, you knew it was an error, so no estoppel. But as you've not spent any of that, it's no problem.

With the maternity pay, no way of getting out of it, no. But presumably as you decided this 6 months ago, you've had time to start saving as you knew you'd have to pay it back? Just send them a letter with a cheque for the overpayment and a cheque for whatever you've managed to save towards the maternity repayment, and say that you are unable to pay the balance in full and would like to arrange instalments. I agree with Edith that making sure it's all paid back in full within a year would be reasonable.

Original poster
tinysleepy · 25/03/2012 20:02

Thanks for all your advice.
There are some other complications, such as them not sending me payslips when they started to repay my salary, but I shan't bore you with further details as the upshot is: pay it back.
Thanks again

OP posts:
MollieO · 25/03/2012 20:08

I'd notice if I were on ML and suddenly had my normal salary paid into my bank account. Sounds as if you need to focus a bit more on checking your finances as well as sorting out the repayment. Good luck.

Is there an option to go back for whatever period you need to in order to fulfill your work commitment so you don't have to pay back the maternity part?

missingmumxox · 26/03/2012 02:23

I think that the OP is a victim of the current climate, I can actually understand her problems with the payslips. I worked in the NHS and all my payslips where sent into work, so when I returned I had them all sitting in my post tray, I still am a little freaked to get home to find them on the mat in my new job, over a year now.
Secondly which could be OP issue? although I don't know?, when I went on mat leave me and DH share a account but my wages where paid into a different account, I had a automatic transfer which left me with my "me " money and the rest was pooled, I cancelled it on commencing mat leave, and lived on DH money, we knew my SMP and OMP would be paid in but we decided this would be a reserve for emergancies, we moved house my e-mail account which my statement got sent to went dead, because I forgot to transfer, I wasn't using the account after all.
I knew I would return to work, I love work and I was able to take a year of Mat leave which was amazing, I am very honoured to have been granted that time, but when I went on mat leave in the NHS 7 years ago, it was pretty much accepted that if you didn't return they wouldn't chase you for the OMP, I had paid in for 15 years when I went off and I didn't think it is cheeky to except that they wouldn't chase me if I had left, the reason was I was told by HR and finance was it was too labour intensive to chase people for the money, they actually lost money chasing overpayments, because the people they are chasing have no income.
at the moment they have to chase to show they are not fleecing the tax payer and with hindsight this is right but you do owe the money and should pay, I remember the relief when I returned to work my forgotten my bank account because I was not aware I would have to pay my Pension contributions for the unpayed part of my mat leave, I assumed, i wasn't earning so didn't need to pay, but in order to have unbroken service I did, which is fair, looking back but at the time, I was a wee bit shocked :)

hairytaleofnewyork · 26/03/2012 05:29

No, slattern, it really doesn't. OP knew it was overpayment - and owes them the money - she has no right to

BakersDozen · 26/03/2012 05:46

OP, If I were you i would sne dthem the salary back for starters. this should shut them up for a bit. Then state obvisouly you now do not have the money to pay bacjk the maternity thingy. Offer a small monthly amount that you can afford. It may take a long time but you need to be able to afford to do it.

Secondly, have you got a copy of the letter saying you will not be returning from 6 months ago. that will be very useful.

I think the company may be quite relieved that you are paying back the lump sum.

Not sure if you want to but how much are you talking about in terms of the maternity payment (not salary) we may be able to work out a figure that they would accept .