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

[keebo47]

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

des8 what did you mean by "There is always a bit of lottery in small claims cases"? Also, what are the dangers of suggesting that I may have used the money to repay existing debts as oppose to paying for "things"? Just so I am fully understanding you...

[keebo47]

Eh? Why on earth would anybody think that it made a difference to the legal position being employed in the private rather than public sector? What is your reasoning behind that assertion? I'm afraid it simply confirms my view that you have a completely unrealistic and naiive understanding of your position.

Your actions in querying your pay/tax with your employer are capable of more than one interpretation and may equally well go against you as for you. For example, you may have been aware of the overpayment from the outset and simply kept quiet about it until you decided that you had probably ridden your luck for as far as you could and decided to alert your employer to make you look good. Note I am not accusing you of doing so - I'm simply pointing out that your actions are not inconsistent with that and are capable of more than one explanation.

Of course it is fair and reasonable for your employer to expect repayment over the same or similar period that the original overpayment extended over.

But it's not me you will need to convince - it's a court...

Manxman Fair enough, I admit my experience in employment law is very green, understandably. My comment about the sector was very irrelevant.

I now understand your point about me raising the tax issue with the claimant, thanks for helping me understand there are always two sides to a story.

The reason why I think it's unreasonable for an employer to expect the same payments over the same period as a repayment is because the employee could be in a very difficult situation (financially) and this overpayment issue may have been the last thing on his/her mind, so it just doesn't seem ethical or reasonable to me that one would ignore that potential and just expect the employee to accept whatever repayment plan. I suppose we are debating here about what is and what isn't "reasonable", which is quite subjective in itself.

[keebo47]

How would you know to raise a tax deduction issue if you didn't check your payslips? And you wouldn't know from just looking at one payslip, would you?

Sorry I think I didn't explain my first point properly. What I meant was:

Once I believed my salary was correct (which was from the first month), I admit to checking my salary every month, however this was based on an incorrect amount. Now even though it was incorrect, both I and the claimant believed that it was the correct amount. So based on this assumption, I am only going to flag something up if I see a difference in the amount I was receiving for 9 months. Would you not agree? If you avoid thinking about "why didn't you just check if your salary was correct?" and read the above, you'll understand what I mean.

[des8]

Sometimes we are surprised at the decisions made in the county courts and one can never be sure how the opponents evidence will be viewed.
There is nothing certain in a court room....

Regarding payment of debt in the case Scottish Equitable plc v. Derby. the defence (of change of position as the defendant had paid off his mortgage) was denied
If you want to know lots more read this: https://www.bu.edu/law/journals-arch...ts/edelman.pdf

[keebo47]

To respond point by point:

1. Nearly all payroll errors come down to some fault or other by the employer. That does not mean that the employer does not have a valid claim to be repaid.

2. So what? Both parties now know (and you have acknowledged) that you have been overpaid. Your employer has six years in which to take action to recover it.

3. The overpayment has nearly always been spent by the time the employer comes to recover it. The question comes down to whether you can establish good faith or not

4. They initially asked you to repay it at £1000 per month, I think? You refused and then they offered to accept a first instalment of £500 followed by monthly instalments of £300. For the reasons I've given in other posts I see nothing wrong with that. If you are referring to the "bullying and intimidation" you claim to have experienced, what evidence do you have of that?

5. They'll say because you acknowledged the debt and because you owe them it. Obviously anybody who owes a debt and is repaying it has to make decisions about what sort of lifestyle they can afford. It doesn't make you an exception and it doesn't cancel the debt

6. That's unfortunate. Many people owe money they can't afford.

7. Most people who end up repaying overpayments were not aware of the problem before it was discovered. It doesn't necessarily mean they don't owe the money


TBH all you can come up with is a basic defence of: I didn't realise I'd been overpaid and it was unreasonable to expect me to be aware of it; I spent the money in good faith and it has all gone; I can't repay it.

Perhaps someone like DES8 can provide or point you towards a template estoppel/change of position defence that you can use?

The problem is that putting forward such a defence ie easy enough - it's getting it accepted by a court that's difficult...


EDIT: I think your main problem is going to be that you agreed the debt and agreed to a repayment plan. Unless you have really concrete evidence of some form of coercion I don't think you'll succeed.

The only evidence I can provide to somewhat prove coercion is that on my last working day I emailed my employer with the following:

"...with regards to the overpayment made by you over a period of 9 months and a sum of £3,375, I believe both you and **** bullied, cornered and intimidated me in to agreeing the repayment plan of £500 first month and £300 rest of the months. You first mentioned that **** asked you whether if [company name] could take my whole salary off me as oppose to making a partial deduction, you then offered me £1,000 per month (with 1 week of notice from pay day) and then finally, two days prior to pay day, you met with me and offered the agreed repayment plan. I feel like you used the first two offers as a negotiating tactic. Especially the first offer of deducting my whole salary, being quite simply inhumane. I also feel like you threatened and bullied me in to accepting £300 per month with an initial £500 deduction as the “best you could do” and even still I repeatedly informed both you and *** that this would be very difficult for me to attain, you showed no remorse nor did you show any sympathy towards a situation that was solely [company name] fault. As a result, you forced me in to accepting your “best offer” with feelings of worry, anxiety and stress. Because, your words and approach to the situation made me feel threatened enough to make me think that should we had not come to an agreement, you would have taken my whole salary from me to recover the money and you would have terminated my contract. You also accused me of cheating and theft by claiming that I knew about the overpayments and intentionally kept quiet. This is complete false and an unreasonable accusation because I was the who brought this situation to your attention. I feel this was a complete defamation of my character. With all of the aforementioned points, the most stressful and daunting point is by far the fact that none of the options you offered were at all fair nor were they feasible which I repeatedly stated to you.

Due to the above and the discrimination/victimization by you, I am confirming in writing that I am retracting my acceptance of our agreement of £300 per month. This will need to be re-agreed on fair and reasonable terms which are affordable to me and in line with my foreseeable financial situation."

Would you say this is substantial evidence? I have this email filed and saved. By the way, this is the last correspondence between both parties since I left them. The next time the claimant decided to make a move was by starting a court claim against me, again, how unethical? If they had approached me or contacted me (especially after I told them a new repayment plan must be agreed), we wouldn't be in this mess and I would have simply agreed a plan with them.

[keebo47]

IF I go down the route of "admitting to part of the claim" in the court claim, and admit to the £2875 outstanding, but reject the accrued interest and claim fee, can anyone advise what my advantages and disadvantages are? Let's say the claimant agrees to this. Will I still get a court judgement against me? Will I have to pay any court fees that I wouldn't have had to if I go down the "reject the whole claim" route?

[Manxman]

The reason why I think it's unreasonable for an employer to expect the same payments over the same period as a repayment is because the employee could be in a very difficult situation (financially) and this overpayment issue may have been the last thing on his/her mind, so it just doesn't seem ethical or reasonable to me that one would ignore that potential and just expect the employee to accept whatever repayment plan. I suppose we are debating here about what is and what isn't "reasonable", which is quite subjective in itself.

I think you misunderstand the legal meaning of the term "reasonable". By its very nature the measure of "reasonableness" is an objective measure, not a subjective one, otherwise the law would be uncertain and be dependent on each individual's circumstances. It doesn't work like that. You demonstrate that you do not understand what "reasonable" means.

(Is being an Assistant QS not a degree entry job requiring some study of basic legal principles? It was certainly a degree choice 40 years ago when I was at university and I know for a fact one of the subjects it covered was law)

[Manxman]

The only evidence I can provide to somewhat prove coercion is that on my last working day I emailed my employer with the following:

"...with regards to the overpayment made by you over a period of 9 months and a sum of £3,375, I believe both you and **** bullied, cornered and intimidated me in to agreeing the repayment plan of £500 first month and £300 rest of the months. You first mentioned that **** asked you whether if [company name] could take my whole salary off me as oppose to making a partial deduction, you then offered me £1,000 per month (with 1 week of notice from pay day) and then finally, two days prior to pay day, you met with me and offered the agreed repayment plan. I feel like you used the first two offers as a negotiating tactic. Especially the first offer of deducting my whole salary, being quite simply inhumane. I also feel like you threatened and bullied me in to accepting £300 per month with an initial £500 deduction as the “best you could do” and even still I repeatedly informed both you and *** that this would be very difficult for me to attain, you showed no remorse nor did you show any sympathy towards a situation that was solely [company name] fault. As a result, you forced me in to accepting your “best offer” with feelings of worry, anxiety and stress. Because, your words and approach to the situation made me feel threatened enough to make me think that should we had not come to an agreement, you would have taken my whole salary from me to recover the money and you would have terminated my contract. You also accused me of cheating and theft by claiming that I knew about the overpayments and intentionally kept quiet. This is complete false and an unreasonable accusation because I was the who brought this situation to your attention. I feel this was a complete defamation of my character. With all of the aforementioned points, the most stressful and daunting point is by far the fact that none of the options you offered were at all fair nor were they feasible which I repeatedly stated to you.

Due to the above and the discrimination/victimization by you, I am confirming in writing that I am retracting my acceptance of our agreement of £300 per month. This will need to be re-agreed on fair and reasonable terms which are affordable to me and in line with my foreseeable financial situation."

Would you say this is substantial evidence? I have this email filed and saved. By the way, this is the last correspondence between both parties since I left them. The next time the claimant decided to make a move was by starting a court claim against me, again, how unethical? If they had approached me or contacted me (especially after I told them a new repayment plan must be agreed), we wouldn't be in this mess and I would have simply agreed a plan with them.

A self-serving email written by yourself is unlikely to be considered by a court to be persuasive evidence of what you claim. (Do you believe everything somebody tells you?)

Your employer will deny whatever allegations you make and the court will have to choose whom it believes. It becomes a "he said... she said" situation.

Is the court more likely to believe you (somebody who agrees on a repayment plan and then reneges on it) or a professional firm employing Quantity Surveyors?

In court it is what you can provide evidence of (preferably independent of yourself) that will win the day, not what you "know" (but can't prove) or what you "believe".

[Manxman]

IF I go down the route of "admitting to part of the claim" in the court claim, and admit to the £2875 outstanding, but reject the accrued interest and claim fee, can anyone advise what my advantages and disadvantages are? Let's say the claimant agrees to this. Will I still get a court judgement against me? Will I have to pay any court fees that I wouldn't have had to if I go down the "reject the whole claim" route?

Negotiate whatever deal you can with your employer to settle the debt and avoid court action. You already accept that you owe the £2875. If you can get them to waive the interest and any claim fees they have included you've done well. But they may stick their heels in and not settle for anything less than the 2875 plus interest plus costs. (Which, as far as I can see, they are entitled to claim for).

Or you let them sue you and see if you win in court.

I had the impression you'd spoken to CAB and had also had some kind of legal advice that told you that you had a winnable case. Why not rely on what they've told you rather than some anonymous people on the internet?

(Remember - the only reliable legal advice you can get is the advice you pay for. And that goes for this site too... )

[Kjun]

If you make a Part Admission to the claim which is then accepted by the Claimant any Judgment will include the costs, so court fee and any fixed solicitors costs (if there were any claimed) but not the interest as per CPR 14.5 para. 7 (9).

As suggested by the other posters Tomlin Order or agreement by mediation if you are lucky enough to get an appointment would be the way to go to avoid a Judgment (CCJ) if you need time to pay.

[keebo47]

If you make a Part Admission to the claim which is then accepted by the Claimant any Judgment will include the costs, so court fee and any fixed solicitors costs (if there were any claimed) but not the interest as per CPR 14.5 para. 7 (9).

As suggested by the other posters Tomlin Order or agreement by mediation if you are lucky enough to get an appointment would be the way to go to avoid a Judgment (CCJ) if you need time to pay.

I'm not so sure I understand or agree with this, when provisionally selecting the part admission response, and I navigate through the next steps it does allow me to suggest the amount I believe that is owed. If the above is true, surely there would be a fixed amount already applied on top of the amount I input?

[R0b]

For the purposes of legal proceedings, when you make a part admission you are accepting liability for a certain amount being sought by the claimant. So if the claimant is seeking £1,000 and you make a part admission of £300, the disputed amount is £700 and the claim will proceed on that basis. As for the £300, the claimant will (if accepted) be entitled to enter judgment for that amount immediately and continue to pursue the remaining £700.

If you admit that the money has been received but deny that you are liable to repay it, then you should tick the box to defend all of the claim. Then in you set out your reasons in your defence as to why you are not liable. The claim continues with the whole amount being disputed and you preserve the opportunity to settle the claim as a whole without incurring a registered CCJ.

[keebo47]

Negotiate whatever deal you can with your employer to settle the debt and avoid court action. You already accept that you owe the £2875. If you can get them to waive the interest and any claim fees they have included you've done well. But they may stick their heels in and not settle for anything less than the 2875 plus interest plus costs. (Which, as far as I can see, they are entitled to claim for).

Or you let them sue you and see if you win in court.

I had the impression you'd spoken to CAB and had also had some kind of legal advice that told you that you had a winnable case. Why not rely on what they've told you rather than some anonymous people on the internet?

(Remember - the only reliable legal advice you can get is the advice you pay for. And that goes for this site too... )

I am still 100% going ahead with disputing the whole claim, as I've stated before I believe my points are strong enough to put a defence forward. I am just contemplating the part admission option as it is still an option I should at least consider.

[R0b]

Then you might be better off defending in whole and making admissions to specific points of the claim rather than a partial admission, but it's your choice.

[Manxman]

I don't really understand how you can admit only part of the claim?

Either you were overpaid by (let's say) £3K or you weren't. I may be wrong but it would seem to me that you have no rationale for admitting some part of the claim but disputing the total amount. Your former employer can simply provide evidence as to your contracted salary and copy payslips to prove that you were paid more than you should have been. Either the amount they are claiming is correct or it is not. I don't see how you can justify trying to dis-aggregate the total amount somehow. It's a question of black or white and not different shades of grey.

You might want to try disputing the costs and interest they are claiming, but I'm not sure any such argument would have merit. You have in effect forced your former employer to take this action because you had previously accepted that you had been overpaid and had agreed the amount, but then you unilaterally reneged on the repayment agreement and failed to engage further with them.

I am not a lawyer but I suspect you'll need a lot of luck to defend this successfully. However, if you are adamant that you want to defend this in court I'd have thought you need to defend all of the claim. But I've no experience of court claim strategy and tactics so I'm not qualified to advise you.