Advice needed regarding a supposed overpayment please.

[Bantam]

Hi everyone. I am new to the forums, but my wife and I have a problem regarding an overpayment by her employer that we need advice with. I'm afriaid it is a long story, but we are at our wits end, so here goes...

Up until October 2010 my wife was employed by a well known supplier of Security Personnel on a 2 year contract. The company themselves don't handle the payroll and this side is taken care of by an accountancy firm contracted by the company concerned. When my wifes contract finished in 2010 they had just changed payroll supplier.

When my wife received her final payslip she and another of her colleagues were contacted by the company to advise that there may have been a possible overpayment on their final wage and requested copies of all her timesheets so they could check. We checked her payslip against her hours worked (her line of work requires extremely long hours with 65+ hours a week not uncommon) and it all looked correct. We forwarded copies of her time sheets to the company as requested. We then heard nothing further on the matter over the past 2 years and assumed it was sorted out...until today.

My wife again started work for this same company on a short term 3 month contract 6 weeks ago. She received her second wage slip today (her first was correct) and has only received approximately 35% of what she was due. When she contacted the agency they advised that the deduction of 65% is for an overpayment made in October 2010.

We have not moved house, changed telephone numbers or email address in the past 7 years so there is no excuse for them not being able to contact us regarding this in tha last 2 years. Also, my wife received no warning from the company that this amount was going to be deducted prior to opening her wage slip.

I understand that if an overpayment has been made that it should be repaid - and quite rightly so, but as yet we haven't received any proof that it has. My questions are:-
Can they just deduct this amount from her wage with no warning 2 years after the event, or should they have contacted her before hand to come to an arrangement?
Do they have to provide proof that there was an overpayment before they can deduct the amount, as to date we haven't received any evidence that the overpayment exists?
If they have acted incorrectly in deducting this amount without prior warning, how do we go about correcting this?

I am sorry to trouble you all with this, but we have no idea of how to proceed. My wife is very upset and feels as though she has worked for practically nothing this past month.

Thank you for reading and your time and any advice offered is hugely appreciated.

[miliitant]

Re: Advice needed regarding a supposed overpayment please.

section 13 employment rights act dictates that an employer can take back an overpayment and that they do not have to tell you. whats normal is a period is decided to pay back an overpayment over a certain time direct from salary.

if the employee leaves then the full amount outstanding can be deducted out of the final salary payment.

BUT THE ABOVE IS IF YOU ARE AN EMPLOYEE OF THE COMAPNY

your wife is no longer employed by the security company, her contract of employment is with the agency. the security company has no lawful authority in deducting the third party wages

if an overpayment of wages is outstanding, the security company would have to quantify that loss, request payment or use the civil courts,

the ultimate responsability now is with the agency, her contract of employment is with the agency, not the security company. it is the agency who has the respoonsability for her wages so ask them to make up the balance within 7 days.

if they do not comply say you will be putting in a claim with the employment tribunal service under section 13 employment rights act, unlawful deduction of wages

to begin with, be nice, if no joy, crack some heads

[Bantam]

Re: Advice needed regarding a supposed overpayment please.

Hi Miliitant, thank you so much for your very quick response.

I would just like to explain things a little further to see if your advice still stands, because its a confusing situation. It is making my head hurt thinking about it.

The contract my wife is working on is with the police, and the agency supply the staff. So both contracts she has had were working for the police force, but she was contracted to the agency for both contracts. Because she has worked through the same agency on both occasions does this mean they are the same employer?

Many thanks again for your help.

[miliitant]

Re: Advice needed regarding a supposed overpayment please.

well no

the first contract was terminated

she is on a totally new contract

her contract of employment is either with the police or the agency,

the agency is responsable for the wages, this is unlawful deduction of wages
speak to the agency and see what they say

i see your point though and might bluebottle offer some insight

take royal mail for example

they now recruit through an agency called anagrd, but angard was set up and run by royal mail

BUT IT IS STILL A SEPERATE COMPANY

large companies are doing this now and recruit only for a three month period to try and circumvent the agency workers directive

[Bantam]

Re: Advice needed regarding a supposed overpayment please.

Thank you again Miliitant for clarifying that.

We will do what you suggested on Monday morning and see where that gets us.

If there has been an overpayment then obviously we have no problems in paying it back, but they should at least provide proof first of all - especially considering how far back this goes.

We checked her payslip last night and the way they are showing the deduction doesn't make sense either. They have calculated it on an hourly rate we could only ever dream of achieving, and certainly not on what she was on at the time. Am I right in thinking it should be shown on her payslip at the correct hourly rate that she was on at the time? The way they have shown it we have no way of calculating how many hours they think she has been overpaid by.

I know its an unlawful deduction because its from a contract that ended and so shouldn't even be deducted from this wage in the first place, but it would be nice to some more amunition to throw at them.

Many thanks again for your time and help.

[teaboy2]

Re: Advice needed regarding a supposed overpayment please.

As The first contract was termianted, they can not deduct wages paid under the second contract for overpayments paid on the first contract. To do so is unlawful deduction of wages under for work done on the second contract. The fact it has been 2 years and the ages added up to the hours worked on the time sheet at the time, and they had not been so far proved otherwise, may mean they may be estopped from claiming the original overpayment in the first place.

Not to mention both contracts may have been with seperate companies as pointed out by militant.

Your best bet in getting this corrected, since you may not have the luxury of being entitled to take it to tribunal. Would be to go speak to a solicitor as hopefully a letter from them will scare the employer/agency enough into reimbursing your wife.

[miliitant]

Re: Advice needed regarding a supposed overpayment please.

Unlawful deduction of wages can be taken direct to a tribunal

their is no "qualifying period" on issues surounding wages and protected characteristics

you can be employed for only a month as an example and still instigate a claim to a tribunal on the above issues

but as stated before, be nice and request direct to the agency the return of your wages before any heavy hand approach

[teaboy2]

Re: Advice needed regarding a supposed overpayment please.

Ture militant, but is this Employment, agency work (with agency as her employer) or contractual work by self employed person? Its very important we know the OP's actual employment status before we start saying take it to tribunal - Thats why i said "May not have the luxury of taking it to tribunal" and recommended getting a solicitor to write a letter instead. Because is the OP's wife is self employed offering her services to agencies and other companies, like quite a few security professionals do, then she won't be entitled to take it to tribunal and instead would have to make a claim for breach of contract in teh civil courts.

[miliitant]

Re: Advice needed regarding a supposed overpayment please.

AGREED

WORKER OR EMPLOYEE


the difference between an employee and a worker is "a contract of employment

worker can be defined as self employed for example

A worker is any individual who works for an employer, whether under a contract of employment, or any other contract where an individual undertakes to do or perform personally any work or service. Workers are entitled to core employment rights and protections. The following groups of people are likely to be workers but not employees:

most agency workers
short-term casual workers
some freelancers

Workers' rights

Providing any other qualifying conditions are met, all workers have rights to:

• the National Minimum Wage
• rest breaks, paid holiday and limits on night work under the Working Time Regulations
• protection against unauthorised deductions from pay
• maternity, paternity and adoption pay (but not leave)
• protection against less favourable treatment because of being part-time
• Statutory Sick Pay
• protection against less favourable treatment if you make a disclosure in the public interest (often called ‘whistleblowing’)
• not to be discriminated against unlawfully

Legislation has now changed since the introduction of the Agency Workers Directive and its impact on the current Employment Rights Act

[Bantam]

Re: Advice needed regarding a supposed overpayment please.

Thank you again Miliitant and Teaboy2 for all your very helpful advice.

Whether my wife is a worker or self employed has always been a grey area for us. On one hand she receives holiday pay, but then the accountancy firm that the agency firm use make a deduction from her wage for their services - so we really aren't certain. I have copied a pasted below the Welcome Letter and Assignment Notice she received when she started the contract t see if it makes things any clearer. I have removed any sensitive information.

First the Welcome Letter:-
Dear******,

Welcome,we hope that you will have a successful time with us.
Pleasefind enclosed documents relating to your forthcoming assignment,which need your immediateattention.
Document1 – Assignment Notice

Youwill find enclosed two copies of your Assignment Notice please signand return to ****** in the envelope providedretaining a copy for your records.

TheAssignment notice is a duplicate of the Assignment Schedule that issent to your limited company; this forms part of the contract between******** and the limited company through whomyou will be operating as a Contractor in your forthcoming assignment.

Documents2 – Timesheets & Timesheet fact sheet

Theenclosed timesheets need to be completed using the fact sheet, oncompletion please obtain an authorised client signatory and fax tothe number on the top left hand side of the timesheet NOLATER than thedates given on the payment run calendar. Without a signature fromthe authorised signatory atthe bottom of the timesheet,payment cannot be authorised. Please note that any timesheetreceived after the deadline or without a signature will be carriedover to the next month.
Ifyou do experience any problems, please do not hesitate to contact uson *******.
Yours sincerely,
AdministrationDepartment

Next the Assignment Notice:-


ASSIGNMENT NOTICE

THE CLIENT
Name: ***********
Address: **************
Client contact: **********
THE SUPPLIER **********

THE ASSOCIATE - My Wife

THE SERVICES Policeor other related Security Services to be provided to and as and whenrequired by the Client which by their very nature must remainconfidential but shall be such services as the parties hereto mayfrom time to time agree
THE ASSIGNMENT

Start Date: *********

End Date: **********

Notice Period: 1 week

Standard Working hours: 35 hours
Contractor Title: **************

__________________________________________________ _________________
I confirm that I have received this AssignmentNotice which is a duplicate of the main terms agreed on theAssignment Schedule between ******** and theSupplier as defined in that document.

Signed_______________________________ Date_______________________
Printed Name: _________________________

************************************************** ************************************************** ************

We have always assumed that she ws classed as a worker becuase she receives holiday pay, but maybe the above will help someone clarify this.

Again, thank you all for your time and help.