Overpaid Holiday Pay

[wilco34]

Hello everyone.

Newbie and first time poster so please be gentle with me!

Advice please on a long and complicated issue which I will try and reduce as much as possible....

1) 20+ years in a public sector job
2) Dismissed for alleged gross misconduct - vexatious claims - absolutely denied
3) Just been to tribunal (over 18 months later) and settled for a substantial sum
4) Employer, on termination, made a final payment including some holiday pay
5) Employer requested, after termination, repayment of some holiday pay they say was overpaid
6) This is their error
7) I was not aware of the error until the request was received
8) Money had been spent on bills/daily living
9) I was suffering with severe depression and therefore was not, at the time, able to decipher their payment

Obvious question is do I have to repay?

The terms of the settlement, which are legally privileged under a non disclosure document, hence the limited details, did not cover this repayment request, which their barrister was apparently not authorised to include.

If I need to I can now obviously make this repayment, once the settlement is received within the next 28 days. However, as most people will probably appreciate, and despite 'winning', I still feel aggrieved at losing a career, and I would prefer to tell them where to stick it!

Any advice please?

Thank you.

[mariefab]

Re: Overpaid Holiday Pay

Usually settlement/compromise agreements will include a phrase like, 'in full and final settlement of ...'
Does yours?
If so, what's the rest of that sentence?

Did the overpayment arise because you'd taken more holiday than had been accrued?
If so, did your contract of employment/handbook/etc. include a clause permitting your former employer to recoup overpaid holiday?

[wilco34]

Re: Overpaid Holiday Pay

Hello, thanks for the quick reply and sorry for the delay coming back to you...


The overpayment was purely their calculative error. My leave entitlement ran from June to May each year. I was dismissed in September and paid to December and they have paid holiday too. I believe that they have calculated holiday pay due to December but should have only paid holiday pay due to September and then just the 13 weeks notice not including holiday pay from September to December?


The letter states...


para 1


"without admission of liability, the respondent will carry out the obligations set out in paragraph 2 of this agreement and the claimant will accept the performance of such obligations, in full and final settlement of his claim against the respondent currently before the tribunal under case number ..... and all other relevant claims arising up to and including the date this agreement is reached. The claimant and the respondent agree that relevant claims are claims related to the claimants employment with the respondent or it's termination, whether at common law, under statute, or pursuant to the European community law .....


para 2


to pay the claimant as an ex gratia payment ...... in respect of his claim for unfair dismissal


unfortunately I cannot answer your question regarding what the contract included? My contract is very old and basic but is apparently updated online under a collective bargaining agreement and I don't have access to the latest version

[CleverClogs]

Re: Overpaid Holiday Pay

Rule #1 (link)

[des8]

Re: Overpaid Holiday Pay

Whether you have to repay or not will depend on what was written in your old employment contract - some contracts state that, if an employee leaves the employment owing the employer money that could not be recovered from final wages, the amount owed becomes a civil debt. If there is no contractual provision to treat the alleged overpayment as a civil debt, your employer may have considerable difficulty in enforcing payment if you refuse to cooperate. You should obtain advice from ACAS and follow CC's link:tinysmile_twink_t2:

[mariefab]

Re: Overpaid Holiday Pay

I think that you should wait until you receive the settlement, then tell them where to stick it.

If their barrister wasn't authorised to include the holiday repayment request in the settlement it should have been clearly written in as an exception.

As it stands the agreement states that it covers all relevant claims and...
'The claimant and the respondent agree that relevant claims are claims related to the claimants employment with the respondent or it's termination, whether at common law, under statute, or pursuant to the European community law .....'

Their claim for repayment of holiday pay that was overpaid at termination is a 'relevant claim'.
If they have a problem with that they should have a go at their barrister for including the claim, by the wording of the agreement, without their authority.

[wilco34]

Re: Overpaid Holiday Pay

Thanks everyone.

I think I will wait and see if I receive anything further, and if I do, refer them to the settlement agreement, and see what reaction I get after that...