Overpaid by my former employer over 9 months - now they’ve made a claim against me!

**keebo47** · 18th March 2021, 22:13:PM

I’d also like to add;
1. I have not made a claim against them for constructive dismissal as my father passed away and I was too emotionally stressed with the debt to be able to see the end of the claim
2. I felt so threatened that I felt the need to ring 101 and get a Crime reference number just in case my former employer tried doing something to me or my house
3. due to the stress they put me through, I spoke to my GP to seek help and they gave me a 4 week sick note to be off work as they deemed me as unfit to work

**ULA** · 19th March 2021, 12:39:PM

I appreciate you have not made a constructive dismissal claim and just for clarity you would now be out of time to make such a claim which should have been done 3 months less a day from when you resigned.

Although this is a claim from your ex-employer this has now become a court matter as your employer has made a Money Claim Online application to recover the money owing to them.

This is not my area of expertise, so I will move your thread to a more relevant area of the forum and tag des8 to review this thread.

**des8** · 19th March 2021, 20:09:PM

Had a read and have a question:
You said " I feel like I have a strong case to dispute the whole claim"
What is the basis of your defence?

Have you acknowledged the court claim yet?

Your employer overpaid you and are therefor basically entitled to be repaid.
Sometimes the employment contract allows them to deduct monies owing from your final salary payment, bit obviously this has not happened.
They overpaid you for a period of 9 months.
Did you not realise you were receiving £375 a month extra?
You noted the extra and informed your employer.
They calculated the amount overpaid and you finally agreed a repayment plan.
However after one payment you resigned and cancelled the payment plan.
You failed to provide an alternative plan so they are now taking action to recover their money.

IMO your only defence would be that you initially believed you were being paid correctly, and have spent the money.
That is a defence of change of position.

If that is not a defence you would probably be best off offering an affordable repayment plan

**keebo47** · 20th March 2021, 09:00:AM

Hi DES8, many thanks for posting.

to answer your questions, yes I have acknowledged the claim, I have until 12th April to respond to the online claim. Yes my employment contract does say they are entitled to deduct my salary in order to recover the overpayment however they did not do this with fair and reasonable terms (as you’ll see in the below list of reasons). So the below list will be my defence as to why I wish to reject the claimant’s claim. Please read and advise further, it would be much appreciated,

ok so the main reasons of my defence are the following:

1. The overpayment was made since my very first salary (August 2019) so there was no way for me to realise the mistake, it is not part of my job role to check what I am being paid
2. The overpayment was repeatedly made over a period of 12 months on 9 instances / 9 months (minus 3 months due to furlough)
3. In the relevant 9 months where the overpayment was made, both parties (claimant and I) assumed and believed the salary given to me was my correct income, and that I was entitled to that amount as it was paid into my account for 9 months since my first payslip, so there was no way I could have realised I was being overpaid
4. The overpayment was not my fault, it was clearly a payroll error that the claimant needs to take responsibility for, and now they expect me to change my lifestyle and add further debt to my life in order to repay them the money
5. The overpayment was discovered by the claimant in the 12th month of my employment with them, this is far too late to expect a repayment
6. In good faith, I became reliant on the assumed salary and spent it on paying my debt off and paying towards other financial obligations such as my mortgage and wedding debt
7. Out of honesty and morality, I was the one who highlighted a discrepancy in my monthly wage due to an increase of payable tax. If it weren’t for me the claimant would still be unaware of the overpayment (evidence can be provided for this)
8. Without discussing or agreeing a repayment plan with me, the claimant offered me (via email) an unfair and unreasonable repayment offer of £1,000 per month (evidence can be provided for this)
9. After I rejected the initial inhumane and unfeasible offer, and pleading with xxx and xx (xxxxxxxx) to agree a feasible and fair repayment plan with me, the claimant threatened and coerced me in to accepting their final offer which was £500 for the first month and £300 every subsequent month (evidence can be provided for this)
10. As part of their intimidation, the claimant threatened to terminate my employment due to poor performance which they showed no evidence for
11. Prior to me forcefully accepting the claimant’s second repayment offer, the claimant threatened me that they will take all my salary as repayment for their overpayment and not agree a repayment plan with me, if I do not accept the final offer in writing
12. This caused severe stress and emotional catastrophe as I had been forced to accept a repayment plan that I simply could not afford, especially after making this crystal clear to the claimant, through emails, text messages and verbal discussions (evidence can be provided for this)
13. After the £500 was taken out of my final salary, I felt discriminated, victimised, and oppressed, as I knew at this point that this and the following salary deductions would create unimaginable, harsh and challenging circumstances in my life. In an environment where I felt hatred and hostility towards me, I (or anyone else for that matter) could not see myself working there anymore, so I was forced to hand my notice in and risk being jobless in the middle of the Covid-19 pandemic
14. Due to the stress, anxiety, and emotional trauma the claimant afflicted on me, not to mention the suicidal thoughts I was having, I spoke to my GP doctor in the hope for seeking mental help. The GP provided me with a sick note of 4 weeks which meant I was not fit to work my notice period and clearly proved my mental condition. This sick note was provided to the claimant (evidence can be provided for this)
15. Again, due to the above and the claimant knowing my home address and other personal details, I felt the need to be protected so I called 101 police and acquired a Crime Reference Number, as I believed the claimant would intend to take revenge or react aggressively to my departure (evidence can be provided for this)
16. Approximately for 6 months after I handed my notice in, the claimant had not contacted or approached me regarding the overpayment since my last working day, not to even provide me with their bank details to continue to make any payments. With this said, I assumed the £500.00 deducted from my last salary was the settlement. There was certainly no Pre-Action Protocol prior to them creating the online claim against me. The day I handed my notice in, I made it clear to the claimant that a new repayment plan must be agreed as I retracted my acceptance from the initial enforced plan (evidence can be provided for this)
17. Although I do not know the factual reason as to why the claimant has waited 6 whole months to take action on the matter, I do believe that the claimant was fully aware of their hostile behaviour and must have felt worried that I may file a claim against them for constructive dismissal. So they waited this long to ensure I will not. I believe I had 3 months after my last working day to file this claim, however, as mentioned earlier, due to feeling threatened and frightened, I did not pursue this
18. I made it clear to the claimant several times that they had asked me to carry out a role of a Quantity Surveyor, not an assistant. My employment contract states that I was employed as an Assistant Quantity Surveyor. Throughout my 12-month employment with them, I repeatedly asked the claimant to either change my job role or provide me with a pay rise, they did neither. This can be simply proven by looking at my email signature which states “Quantity Surveyor”. So, this is part of my reason as to why I wish to reject the claimant’s claim, I believe I was carrying out a role which I was supposed to be paid more for in the first place. I can provide witnesses that will testify to their belief of my role of a Quantity Surveyor throughout my employment (evidence can be provided for this)
19. I have spent countless of hours discussing the overpayment and this claim with solicitors, debt advisors, friends, family and other various professionals. All of this time invested has costed me money. I believe this all could have been avoided had the claimant contacted me in the 6 months from my last working day to the point of starting a claim against me, especially after I confirmed to them I retracted my acceptance and a new repayment plan must be agreed with me, giving them enough opportunity to contact me. Clearly, the last person who mentioned the repayment was me and the claimant evidently did not respond
20. The claimant is now including the claim fee and interest at 8% for the 6-month period they decided not to contact me in, I completely dispute this
21. Due to my current employment contract, I only have certainty of income until October 2022, for this reason, I would be unable to feasibly afford a repayment plan without it being detrimental to any unexpected or inevitable living costs beyond this date, bearing in mind also, until October 2020, I will need to be saving as much as possible for such uncertainty
22. The claimant are a construction company that turns over millions of pounds a year, I, on the other hand, am an individual who is financially struggling and suffering due to the covid-19 pandemic, and therefore do not have the available capacity or funds to repay this money, as I never expected to be in this position in the first place

**ULA** · 21st March 2021, 15:00:PM

I would like to come in on a couple of the employment points raised in the above post which I may be helpful for des8 to be aware of in the advise given on regard to defending this claim. They are numbered accordingly

1. It is a responsibility of all employees to check that they are being paid the correct amount.
5. The Employment Rights Act 1996 does allow for an employer to recover an overpayment of salary in a fair and reasonable way.
13. Even if an employee no longer works for the company, the right of the employer to reclaim overpaid wages remains.
18. This has no bearing on the employer's right to reclaim the overpaid wages.

**des8** · 21st March 2021, 19:25:PM

What you have posted reads more like a witness statement than a defence.
Can you post up the Particulars of claim please?

**keebo47** · 21st March 2021, 21:58:PM

I am in the middle of writing it out in defence format. This is being done in conjunction with a legal advisor in employment law, a very helpful friend. So the above reasons posted earlier were just a draft of what my reasons are to dispute the claim.

**des8** · 21st March 2021, 22:29:PM

All that build up of what happened really has little to do with the basic matter.
Your employer overpaid you in error.
You have made a preaction admission about it.

There is no argument about that.

What you have to do is show you should not have to repay because, not realising the overpayment, you have spent the lot!
In other words your defence would be based on change of position (or possibly even on estoppel by representation).
Payment would have to be on things, not repayment of debts etc.

Accepting a repayment plan because of coercion does not undermine the claim of over payment
Ula has already indicated some areas where you have no argument

You should also be prepared to accept an affordable repayment plan.
Don't overestimate the amount of repayment you can afford.

**keebo47** · 22nd March 2021, 16:22:PM

Hi, I’m quite disappointed that my list of reasons to defend the claim isn’t what you expected. Nevertheless, if I go down the change of position route, what would you say my chances are of a. Being let off the whole claim b. Being let off some of the whole claim (e.g. 50% written off) or c. Being ordered to pay the whole amount (£2,875 + interest + claim fee)

baring in mind that we are in a covid-19 pandemic still, the overpayment occurred during the start of the pandemic, I was treated unfairly and unreasonably by the claimant in their pursuant of the money. Please let me know which outcome from the above you think will most likely be.

**des8** · 22nd March 2021, 21:37:PM

I couldn't possibly hazard a guess of what are your chances of success, but f you don't defend you will certainly lose by default.
Plus there is always a bit of a lottery in small claims cases

To use a defence of change of position you will need to show you did not realise there was an overpayment.
It might be difficult to convince the judge that you were unaware you were being overpaid by £375 pm
Obviously I don't know your exact salary, but i believe assistant quantity surveyors receive about £30000pa.
On starting a new job I think it would be normal to check you were being paid 1/12th of your annual salary,
As a quantity surveyor you are presumably at home with figures and the judge might presume you would automatically have noted a 15% extra.
As Ula pointed out the employee has a responsibility for ensuring he is paid the correct amount.

The next hurdle is demonstrating that the extra was spent and not used to repay debts.

You said you were working with "a legal advisor in employment law," What are they advising?

Just to be absolutely clear I am not qualified and only suggest how I would deal with any given situation.
If you have doubts do seek professional advice

**keebo47** · 24th March 2021, 00:49:AM

So out of my 3 options that are given to me in the online claim, which are; dispute all of claim, admit part of claim and admit all of the claim...obviously if I am intending to defend I must opt for the “dispute all of claim”...I did think about choosing the admit part of claim option but as you said that is almost like admitting choosing to lose by default...

the employment law advisor from work said I have a good case to put forward especially considering that the overpayment had been made from month 1 of employment and over such a long period of time (12 months)...he advised where defendants/employees go wrong in this situation is that they don’t admit at all that they owe any money...in my case I will be admitting that indeed an overpayment has been made but in my defence I shouldn’t have to pay any money back...if that makes sense!

**des8** · 24th March 2021, 14:29:PM

If you intend to fight their claim as you rightly say you need to dispute all the claim.

You admit to the overpayment, but deny it is due to be repaid because it was your employer's error of which you were unaware
You would, if you had to make restitution, therefor incur a loss by having relied in good faith on the payments being yours.

**Manxman** · 24th March 2021, 17:50:PM

I'm a former NHS manager and I've been involved in sorting out salary overpayments from both sides of the fence. I've been in receipt of overpayments myself and I've negotiated repayment plans both on behalf of fellow employees and on behalf of my employer. Just a few observations on your position:

As already pointed out, all employees have a duty to check their pay. The fact that the overpayments started from your very first pay period is no excuse for not realising you were being overpaid from the outset. (To be perfectly frank, you would be the first employee I've ever heard of who did not check their very first pay slip very carefully - that is the one most people are most interested in checking). And a monthly overpayment of £375 is quite a large amount to overlook - it equates to an increased salary of well over £4k more pa

It's common for overpayments that have stretched over some length of time to be repaid over the same or a similar period. Your employer's second offer of an initial repayment of £500 to be followed by monthly payments of £300 (based on a total overpayment of £3375) sounds quite reasonable to me - or you could have offered £375 per month over 9 months. (I note there is a discrepancy between the amount you mentioned in your OP and the amount claimed by your former employer. I assume that is because the amounts quoted in your first post are "gross" amounts whereas the amount claimed is the "net" amount?

estoppel/change of position can be a valid defence, but I've had experience of scores and scores of overpayments - many considerably larger than yours - and never personally known estoppel to succeed. I think your main problem might be persuading a court that you never checked your very first payslip (surely everybody checks their first payslip to confirm they are being paid correctly?) and you never noticed that your annual salary was over £4k more pa then it should have been

Having finally agreed a repayment plan with your employer it doesn't look very good to renege on it unilaterally

I have no comment on the tactics you say were used to persuade you to agree to a repayment plan.

**des8** · 24th March 2021, 19:34:PM

Following Manxman reinforcing concerns raised earlier, perhaps OP should be reviewing his decision to dispute the claim.

If the defence fails and the judgment is not paid within 30 days a CCJ will be registered, which may have consequences.
Perhaps the op should consider trying to negotiate a TOMLIN order

Overpaid by my former employer over 9 months - now they’ve made a claim against me!