Unpaid last salary payment

[Julian Lineton]

I resigned from an employer with service 2.5 years. The resignation was accepted, a P45 send and a final pay slip. No notice was given of the any deducation.

The money did not appear in my bank account. After asking I got no response so invoked ACAS early consolidation.
The employer would not engage in ACAS early consolidation but the last thing thay said was that they were investigating an overpayment of pay.

Two years ago I was informed of an overpayment and I wrote back requiring a full detailing of what had been paid and what should have been along with a detailed explination and that then I would have to consider how it could be paid off.

I received no response to my letter and made no agreement to pay this off. I never heard anything else from the employer about this. There is a clause in the contract that says overpayment can be reclaimed in accordance with the employers over payment policy.. I no longer have access to these policies. The employer's actions, are causing financial distress as I am now studying and living without sallary.

The employer knew of these plans as they were discussed before my resignation was agreeded. I think the employer's actions are illegal, particuarlty in view of the lack of notification, the time taken to respond to enquiries, and the length of time ago of the overpayment. The overpayment relates to the early part of 2017.and some of 2016.

can anyone advise where I stand, The next step will be to tribunal. However, I would like to know the facts.

RB

[ULA]

Do you have copies of the correspondence from two years ago requesting the information of the overpayment?

Was the overpayment equal or greater than the amount of your final salary?

Do you have anyone at the company who may be able to get you a copy of the overpayments policy?

What date did this all happen since if there was a tribunal claim to make you would need to do so 3 months less a day from when your employment finished.

[Julian Lineton]

Yes I now have a copy of the policy. I do not remember how much it was and my reply was sent from my work email which I have no access to any more. I have a draft and asked for full details and an explination of what happened and why. I received no response. The amount is around about my last pay. The company have not followed their own overpayments policy. I am aware of the 3 months limit. that is why I am asking.

[ULA]

If I understand you correctly you do not have any copies of the correspondence in regard to the queries you raised about the overpayment. In what way has the company not followed their overpayments procedure?

[Julian Lineton]

If I understand you correctly you do not have any copies of the correspondence in regard to the queries you raised about the overpayment. In what way has the company not followed their overpayments procedure?

I only have my draft which is very close to what is sent. The final version was sent from my work email which I no longer have any access to. I am sure that in the reply I asked for a full and complete breakdown of what happened and who was responsible.

The overpayments procedure says this should have happened (over a year ago)

Any overpayment occurring over a period of more than four months will be referred to HR Operations. HR Operations will immediately contact the relevant line manager to discuss and investigate the reasons behind the overpayment. HR Operations will also notify the member of staff that HR Payroll will contact them in due course to agree a repayment plan. This will happen once a revised payroll instruction has been forwarded to HR Payroll, which will enable HR Payroll to process the change through the system and subsequently obtain an accurate overpayment value prior to contacting the member of staff.

So they contacted me, I wrote back and they dropped the ball at that point. I also recolect the reason was late notification of sick pay, which was not my cause as I filed all self certs and sicknotes on time. So its either my manager or something within HR. Does that give you all the information needed. In relation to correspondence I do not have their letter to me, only a draft of my reply (an last draft) and there was no further correspondence.

[ULA]

Employers are permitted to make deductions where there has been an overpayment of salary and this is covered by Section 14 of the Employment Rights Act 1996, which provides that protection from deductions from wages does not apply to an overpayment of wages or employment-related expenses. It is probably this that your ex-employer is relying on.

How long after the overpayment was made were you notified of the fact? You may have a defence to a claim for the repayment on the basis that you believed that there was an entitlement to the money and that, in good faith, you "changed your position" in reliance on the money. This usually means that you have spent it. Provided that the overpayment is not your fault you may be able to defend a claim for repayment on these common law grounds. A factor in this could be that there was no response to your request for details in order for you to consider how to make repayments.

[Julian Lineton]

Employers are permitted to make deductions where there has been an overpayment of salary and this is covered by Section 14 of the Employment Rights Act 1996, which provides that protection from deductions from wages does not apply to an overpayment of wages or employment-related expenses. It is probably this that your ex-employer is relying on.

How long after the overpayment was made were you notified of the fact? You may have a defence to a claim for the repayment on the basis that you believed that there was an entitlement to the money and that, in good faith, you "changed your position" in reliance on the money. This usually means that you have spent it. Provided that the overpayment is not your fault you may be able to defend a claim for repayment on these common law grounds. A factor in this could be that there was no response to your request for details in order for you to consider how to make repayments.

The initial overpayment was in notified three to four months after the aleadged overpayment. Since leaving the employer I have lived from savings and the employer knew of this as initially I had asked for a period of extended unpaid leave and the employer knew this was the reason for leaving. Does this strengthen the case. The lack of pay is also causing financial distress. Does this help?

[ULA]

Unfortunately your current financial situation will have no bearing on the case it will be down to a point of law and whether, if you decide to bring a claim for unlawful deduction of wages, the Tribunal finds in your favour should your employer decide not to settle before any hearing.

[Julian Lineton]

Employers are permitted to make deductions where there has been an overpayment of salary and this is covered by Section 14 of the Employment Rights Act 1996, which provides that protection from deductions from wages does not apply to an overpayment of wages or employment-related expenses. It is probably this that your ex-employer is relying on.

How long after the overpayment was made were you notified of the fact? You may have a defence to a claim for the repayment on the basis that you believed that there was an entitlement to the money and that, in good faith, you "changed your position" in reliance on the money. This usually means that you have spent it. Provided that the overpayment is not your fault you may be able to defend a claim for repayment on these common law grounds. A factor in this could be that there was no response to your request for details in order for you to consider how to make repayments.

Sorry for the late reply Ihope you can help. It was over a year and a half since they notified me of the over payment. SAR has now revealed the amount which is approx 1600 with 2890 owing to be for last wages. They have not even paid the ballance. Claim filed in time. You are probably correct on their reliance. As also revealed by SAR I wrote to them at the time as they were proposing to recover the potential debit in one go from june 2017 sallary payment. I stated this would cause financial distress. I also required them to give full and exacting details of how the overpayment had happened and a detail of what should have been paid, what was and the difference. I also told them that if they could not make adjustments with HMRC and the organisational pension scheme (as the overpayment was spread over the 16/17 and 17/18 tax year) they would have to write those elements off. I.e. by the overpayment I would have had paid more tax and increased pension contributions and it was not clear if this could be corrected retrospectivly. I received a reply as exposed by the sat saying at that time (in 17) that they would not take the money from sallay which they did not and would get back to me with all the details. They did not do this and I forgot about it. They only brough it up 1.5 years later after I left.

Looking forward to your reply.

[ULA]

Thanks for the update.

So, the amount owing was less than the sum you were due from your final salary which means that it would appear there has also been an unlawful deduction of wages by not paying you the balance.

You now have the SAR information which confirms that you did write to them to establish the exact breakdown of the overpayment, at the time you were first notified of it nearly two years ago and that a one-time repayment of the £1600 would cause you an issue.

Where are you with the ET claim since the early conciliation process seemed not to have resulted in a positive progress as indicated at your post #1?

I presume you have had a copy of their ET3 from the Tribunal?

Has a case order management been issued by the Tribunal?

[Julian Lineton]

Thanks for the update.

So, the amount owing was less than the sum you were due from your final salary which means that it would appear there has also been an unlawful deduction of wages by not paying you the balance.

yes

You now have the SAR information which confirms that you did write to them to establish the exact breakdown of the overpayment, at the time you were first notified of it nearly two years ago and that a one-time repayment of the £1600 would cause you an issue.

Yes

Where are you with the ET claim since the early conciliation process seemed not to have resulted in a positive progress as indicated at your post #1?

I presume you have had a copy of their ET3 from the Tribunal?

Has a case order management been issued by the Tribunal?

No. I have emailed the tribunal three times asking if there is any progress. (no response recd). Apparently they are so overwhelmed there are long delays. So not yet there are no case management scheduled and I have not received an ET3. I have been told that the way the tribunal operates as they are so far behind they would not have even yet sent the ET1 to the respondent [not sure how accurate this is but it does explain the lack of response]. I have tried telephoning the tribunal several time but the phone just rings and rings no answers and eventually goes dead.

[ULA]

Unfortunately I am aware of the backlog in many of the Tribunals but not to the extend that an ET1 submitted in about March time when you started early conciliation has not even been sent to the respondent.

I know it is terribly frustrating but i would try and get hold of the Tribunal and find out where your particular case is at.

[Julian Lineton]

Unfortunately I am aware of the backlog in many of the Tribunals but not to the extend that an ET1 submitted in about March time when you started early conciliation has not even been sent to the respondent.

I know it is terribly frustrating but i would try and get hold of the Tribunal and find out where your particular case is at.

ET1 was submitted on time in May (very end of the period with just a few days to spare). Telephoning in the morning and mid afternoon, and late afternoon gets the same response at present. I may take a trip there and see if that helps.