Overpaid wages passed to solicitors

[FlamingParrot]

Re: Overpaid wages passed to solicitors

and don't get concerned about court action.
If they were to use a solicitor, that part of the solicitor's fees not recoverable in a small claim would exceed the amount they are claiming from you.
Court action most unlikely IMO

As we all know, they could easily issue a claim using MCOL without the need for a solicitor and it you are positive you have a winnable case, given the relatively small sums involved, why would you get a solicitor involved? Anyone can issue a letter before action so why wouldn't they just do that themselves rather than getting Shoosmiths on the case? My theory is, because people tend to take letters printed on certain letterheads more seriously than those printed just on their normal business stationery. Many people think that a letter from a solicitor demands more serious consideration than any other letter and solicitors often offer their services simply to write letters for that reason.

I've got a couple of letters I received from a solicitor about a private matter (not one of my creditors) stating "lack or response will result in proceedings being issued early next week". That was 18 months ago, I'm still waiting for the claim... :ranger:

[nymeria]

Re: Overpaid wages passed to solicitors

That certainly isn't a letter before action. Notice the to consider etc. So try not to worry. If that is a gross pay overpayment there are also the issues of tax and NI to condider

I've just received a reply from them - apparently they paid me for the whole month but as I left on the 14th they were only supposed to pay 14 days. This seems to be the amount after tax etc.

Does this mean that there is no pending court case? That letter is dated from April and it says I need to respond to I within 14 days. It could have escalate since then - though i suppose they would have send an up to date version?

- - - Updated - - -

and don't get concerned about court action.
If they were to use a solicitor, that part of the solicitor's fees not recoverable in a small claim would exceed the amount they are claiming from you.
Court action most unlikely IMO

I'm a bit confused - doesn't the fact I'm getting letters from a solicitor mean they've already engaged one?

[nymeria]

Re: Overpaid wages passed to solicitors

Was the overpayment obviousl?

It seems very heavy handed to use a solicitor to recover this without trying to come to an arrangement with you.

If you decide to pay it back only offer what YOU can afford each month.

Yes and no - I basically received my full salary for that month. I was always under the impression that it was paid in arrears but apparently you are paid for your current month.

[des8]

Re: Overpaid wages passed to solicitors

- - - Updated - - -[/COLOR]I'm a bit confused - doesn't the fact I'm getting letters from a solicitor mean they've already engaged one?

Not exactly.
As FP pointed out, your ex employers are probably using the solicitor to send letters as it may frighten you into repaying the money without the need to go to court.

If they go to court the solicitor's fees claimable against losing party are minimal, whereas their actual charges will run into four figures.
So your ex employers are using solicitor to persuade you to give in, and might even get them to issue the claim.
Once you put in a defence however on the grounds that you did not realise the overpayment and have spent the money, it is most likely the solicitors will be withdrawn and the case itself discontinued.
That is if it ever gets that far!

[Berniethebolt]

Re: Overpaid wages passed to solicitors

It's odd. When I worked I got paid 26th for the month we were in so almost a month in arrears. Payroll cut off was about 15th.
If they are asking for the gross amount they have a cheek. What date did they put on your p45

[teaboy2]

Re: Overpaid wages passed to solicitors

Yes and no - I basically received my full salary for that month. I was always under the impression that it was paid in arrears but apparently you are paid for your current month.

When you first started working for them, were you paid at the end of your first month (even if you only worked 1 day in that first month)? If not then you likely were paid month in arrears like majority of monthly paid workers are.

Also if you work 5 days a week it amounts to 10 days holiday, so what did your final pay slip state, regarding gross pay, holiday pay etc?

[nymeria]

Re: Overpaid wages passed to solicitors

Not exactly.
As FP pointed out, your ex employers are probably using the solicitor to send letters as it may frighten you into repaying the money without the need to go to court.

If they go to court the solicitor's fees claimable against losing party are minimal, whereas their actual charges will run into four figures.
So your ex employers are using solicitor to persuade you to give in, and might even get them to issue the claim.
Once you put in a defence however on the grounds that you did not realise the overpayment and have spent the money, it is most likely the solicitors will be withdrawn and the case itself discontinued.
That is if it ever gets that far!

Thanks for your reply - that's actually quite reassuring.

[nymeria]

Re: Overpaid wages passed to solicitors

It's odd. When I worked I got paid 26th for the month we were in so almost a month in arrears. Payroll cut off was about 15th.
If they are asking for the gross amount they have a cheek. What date did they put on your p45

When you first started working for them, were you paid at the end of your first month (even if you only worked 1 day in that first month)? If not then you likely were paid month in arrears like majority of monthly paid workers are.

Also if you work 5 days a week it amounts to 10 days holiday, so what did your final pay slip state, regarding gross pay, holiday pay etc?

I'm pretty sure I was paid more in the second month to account for not being paid in the first month, but it was 4 years ago so I'm not sure. We were paid on the 17th I believe.

The amount is the net amount and the date is correct unless they put a different date on P45 than they have internally. I'm currently waiting on the final calculation re: holidays as apparently my manager put 0 holidays outstanding onto the system - not sure if this is correct.

Should I write to the soliticor to say I am waiting on the final calculation so that they don't take any action in the meanwhile?

[teaboy2]

Re: Overpaid wages passed to solicitors

Do you still have your pay slips from 4 years ago?

If not you should request copies from the employer or your first one at least!

I wouldn't worry about the solicitor its just a threatogram and they won't take action without the employer instructing them to do which is unlikely now its clear you communicating with them to establish the facts and validity of their claim regarding alleged overpayment.

[nymeria]

Re: Overpaid wages passed to solicitors

It's odd. When I worked I got paid 26th for the month we were in so almost a month in arrears. Payroll cut off was about 15th.
If they are asking for the gross amount they have a cheek. What date did they put on your p45

When you first started working for them, were you paid at the end of your first month (even if you only worked 1 day in that first month)? If not then you likely were paid month in arrears like majority of monthly paid workers are.

Also if you work 5 days a week it amounts to 10 days holiday, so what did your final pay slip state, regarding gross pay, holiday pay etc?

Do you still have your pay slips from 4 years ago?

If not you should request copies from the employer or your first one at least!

I wouldn't worry about the solicitor its just a threatogram and they won't take action without the employer instructing them to do which is unlikely now its clear you communicating with them to establish the facts and validity of their claim regarding alleged overpayment.

We never got any payslips - they were accessible online, but I don't have access to the system anymore. I will see if I can request the first payslip.

Thanks.

[dan_1207]

Re: Overpaid wages passed to solicitors

Recovering overpayment of wages is entirely acceptable. See, for instance, Kleinwort Benson Ltd v. Lincoln City Council [1998] 3 WLR 1095. It's a simple common law remedy of restitution, based on a mistake of law or fact. In overpayment cases, restitution prevents the unjust enrichment of the worker at the expense of the employer.

There is a wealth of case law on a change of position defence.

In County Council of Avon v Howlett [1983] 1 WLR 605, a teacher was paid more sick pay than he was entitled to. The teacher queried the overpayments but was told they were correct. By the time the council had realised its mistake, the teacher had spent most of the money. The Court of Appeal held that the defence of estoppel prevented the council from recovering any of the overpayment.
The court identified three conditions that must be satisfied for the defence of estoppel to succeed:

1. The claimant must generally have made a representation of fact, which led the defendant to believe that he was entitled to treat the money as his own.

2. The defendant must have, in good faith and without notice of the claimant's claim, consequently have "changed his position" (in other words, spent some or all of the money).

3. The payment must not have been primarily caused by the fault of the defendant.

In Lipkin Gorman v Karpnale [1991] 2 AC 548 the House of Lords set out the more flexible defence of "change of position". This defence means a recipient does not have to repay any or part of an overpayment if it would be unjust for them to do so. Therefore, if an overpayment is made and the recipient spends part of it (as in Howlett), they may be ordered to repay the money they have not spent.

In Vaught v Tell Sell UK Ltd [2005] EWHC 2404 (QB), a former employee who had been overpaid raised the defence of change of position, arguing that he had not realised that he had been overpaid at the time and had spent the overpayment. The High Court held that the question was simply whether, in all the circumstances, it would be inequitable to require him to repay the sums, either wholly or in part. Relevant factors include the size of the sum for which restitution is sought and the resources available to the person from whom restitution is sought.

In Vaught, the court refused the defence of change of position. This decision was based largely on the fact that, although the employer had overpaid the claimant by over Ł4,000 (taking account of money already recovered), the employer had also failed to pay Ł5,000 in pension contributions for him. The effect of Mr Vaught's defence was that his employer should pay him the pension payments in full, but he need not pay the employer the amounts due from him. The court considered this to be grossly inequitable to the employer, while there was nothing inequitable in requiring Mr Vaught to pay the sum that he owed by way of deduction from the sums due to him

[teaboy2]

Re: Overpaid wages passed to solicitors

We never got any payslips - they were accessible online, but I don't have access to the system anymore. I will see if I can request the first payslip.

Thanks.

That's a breach of section 8 employment rights act 1996, payslips should be in written format and given to employees, not electronic. Having them accessed via internet is also a possible breach of data protection act 1998 if your pay slip was accessible by people or bots/spiders (basically software that crawls the net gathering data and information) other than yourself, or at risk of being accessed by unlawful access to company systems/network.

[dan_1207]

Re: Overpaid wages passed to solicitors

That's a breach of section 8 employment rights act 1996, payslips should be in written format and given to employees, not electronic. Having them accessed via internet is also a possible breach of data protection act 1998 if your pay slip was accessible by people or bots/spiders (basically software that crawls the net gathering data and information) other than yourself, or at risk of being accessed by unlawful access to company systems/network.

Section 6, Employment Rights Act 1996:
In sections 2 to 4 references to a document or collective agreement which is reasonably accessible to an employee are references to a document or collective agreement which—

(a)the employee has reasonable opportunities of reading in the course of his employment, or
(b)is made reasonably accessible to the employee in some other way.

I don't think there's been a breach.

[Berniethebolt]

Re: Overpaid wages passed to solicitors

That's a breach of section 8 employment rights act 1996, payslips should be in written format and given to employees, not electronic. Having them accessed via internet is also a possible breach of data protection act 1998 if your pay slip was accessible by people or bots/spiders (basically software that crawls the net gathering data and information) other than yourself, or at risk of being accessed by unlawful access to company systems/network.

I can't see any breach so long as it was in a secure section of the site. I also think that mentioning the DPA is a little overkill. The OP says they no longer have access to the site so it is a fair assumption that it is a secure site. It seems a bit like saying online banking is a possible breach of the DPA, Not only that but I can't see any part of the relevant Act that suggests hard copies are needed.

[nemesis45]

Re: Overpaid wages passed to solicitors

Have to agree with TB2 a " Firm" I worked for tried this the assumption that all personnel had access to the internet at all times was unreasonable and it was withdrawn an payslips were posted instead.