Overpayment of salary claim

[Griff]

Hi, My ex-employer is threatening to sue me for an over payment of salary which I have partially disputed. I left the employment on 31 July and emailed asking for my payslips and P45 but did not receive either. I then called on 13th August asking again for P45 and payslip but was advised that I would not receive it until after the payroll is processed at the end of August and understood then that I was due another payment particularly as I was paid commission one month in arrears (ie. paid in August for July sales).

I received a payment at end of August as they stated of £2093 but still no payslip or P45. Then on 26th September I received an email saying I had been over paid by £4196. I promptly replied stating that I did not know how this had happened as firstly, the only payment I had received was the amount stated above and nothing else and I was advised by the payroll dept that I was due another payment. They then stated that another payment of £2093 will be paid into my account on 28th September. I stated that I am happy to return the September payment but I was led to believe that I was due the August payment and the money is now spent. They then said they would agree to a four monthly settlement agreement or would seek legal action to obtain the money which they have now done.

I explained that there was no way I could have known this was an over payment because:

1. they have not provided me with payslips for over 4 months which I am legally entitled to despite repeated requests by email and phone.
2. I work on a commissioned salary which is different every month. I sold products in July whilst I was still employed and was not paid for.
3. I had no idea what payments I was due and whether I was being overpaid or underpaid in the absence of payslips.
4. I have stated that the money was spent in good faith and I was claiming a defence of change of position as the money has been spent on my financial debt (mortgage, overdraft, credit cards, etc) and would be detrimental to my financial position more so than it would be to the organisation to not receive payment.

In addition they have:

1. refused to send me P45 until the overpayment was returned (which has now been sent since solicitors have been involved); and
2. stated that my payslips were sent to a different address despite having my correct address which is clearly stated on my payslip (they have also now sent me a whole year of payslips by email). I have been informed this is a serious breach of Data Protection laws (ironic as the prime business of the organisation is Data Protection).

The solicitor has not acknowledged Any of this but has now asked why I feel this is a change of position defence. And has asked me to provide all bank statements and receipts back as far as July 1st within seven days.

I have not replied to this letter as I cannot afford legal defence and my house insurance £50k legal cover will not cover the claim as they are stating it does not cover 'defending a claim'. All they have advised is not to pay anything back at this point as I will have nothing to play with if it goes to court and the court may just say pay the second payment back. What chances do you think I have to win this?

Please help and sorry this is long winded.
THanks

[charitynjw]

Re: Overpayment of salary claim

Hi Griff,

The possible defences would be:

Estoppel - You were led to believe that you were owed the money, & you weren't in any way at fault.
Avon County Council v Howlett (1983)

Change of position - similar to estoppel, but a bit more flexible; however, if the money is still available (or part of it), it will probably have to be paid back.
Lipkin Gorman (a firm) v Karpnale Ltd HL (1991)

Remember, though, one who seeks equity must do equity, and must have 'clean hands'.