Accused of receiving OverPayment of Salary for 3 years.

[Sugar Plum]

Hi everyone any advice would be appreciated.

 

I have been working for my the company since Feb 2008. On April 28th 2009. I received a pay rise letter that my salary has increased to a much larger figure than I was originally on.

 

The next day I rang head office to confirm with them if it was correct or incorrect, the company secretary who deals with everything said yes and I am very lucky.

 

A few days later I went into work I thanked my boss for the payrise, he said thats fine the company is doing well and we are very busy. It constantly for several months referred to my payrise when he wanted me to stay late or come in early as I work part time.

 

March 16th 2012 I received a phone call from Company Secretary telling there has been a mistake with payroll saying they have overpaid me and I knew and should of brought it to there attention.

 

I told here I dont know what she is talking about the only wage I have received is whats on my payrise letter which she herself confirmed and my boss who is the Senior Partner who I work directly for.

 

She said well according to the Employment Rights Act they can deduct my wage without asking me. I told her no you cant as I have my payrise letter and have had another payrise in 2010. So they would need to prove it first.

 

She ignored me anyway. Then the day before I get my salary at 4.15pm my boss came into my office and said your salary has been cut due to overpayment. I told him he couldnt do that as I have my payrise letter. He said well its been done because the company secretary has looked into it.

 

This was the first conversation I had with a member management. Anyway the next day I checked and they had deducted over £500 per month and continue to do so.

 

I had a meeting with him I shown him the paperwork and asked him to prove in the body of the letter where it was wrong and how I would know it was wrong. He couldnt and said ok its for us to prove, I am still waiting for proof nearly a year later.

 

I said I would attend the meeting this 17 Jan 2013 to discuss factual proof of overpayment documents.

 

I have read all the Employments Act numerous times. I know all about the Tribunal Procedure etc etc. I have been studying very hard.

 

I am not going to the Tribunal as the amount in question is above the Tribunals maximum payout. So I need to go Civil Court

 

All I want is for them to reinstate my salary and return all the money they have deducted from me nothing more.

 

My question is does anyone know the steps to take to file a estoppel and nunc protunc in the Courts. I rang the courts asking what forms I need they said they have never heard of it. I cant find any information on line on how to file this.

 

I need to follow correct steps to ensure it is not thrown out in court due to not filing it properly.

 

Thanks if you manage to read all thissssssss any advice would be greatly appreciated

Edited January 15, 2013 by Sugar Plum

[Sidewinder]

I think it would probably pay you to take proper legal advice on this, but my initial thoughts are that sonce the rise was properly communicated, was questioned by you and confirmed to be correct that this is in fact NOT a salary overpayment. On that basis, and where any reduction by you has not been agreed to, their reduction of £500 per month actually represents an Unlawful Deduction from wages contrary to S.13 of the Employment Rights Act.

 

You would still be within time limits for an Employment Tribunal as the deductions are ongoing - not quite sure what you mean by the amounts being above the ET limits.

 

In the County Court you would be suing for a breach of contract - the issue of Estoppel would not be relevant (IMO) due to this not being the recovery of an overpayment, but an unlawful deduction and breach of contract.

 

Thread moved to the Employment Forum

[Sugar Plum]

Thanks sidewinder

 

The secretary and my boss seem to have developed selective amnesia and dont remeber any cconversations between myself and them. They are trying to say I was given a payrise on the basis of me being full time, I have never worked full time for them.

 

For the first 12 weeks of me working for them I did 10am til 5.30pm. Then once the other secretary returned on ,1st May I went to 1pm - 5pm. 11 months before I got the payrise, so my salary had already been adjusted on payroll for 11 months.

 

If I am going to go off there lies saying its now a payroll error, I cant see how they can try and justify this because if they were giving me a eg: £500 per per annum they would just add this or however they do payroll to my existing salary. The payroll cant make up a totlly new figure and put it on the system.

 

It has to be entered by someone and they have to have been given the figures from the Partners of the Company. They cant say it just tolled over because the original amount had to have been changed all together, please let me know if I am wrong.

 

The reason I wanted to do the Estoppel was to stop them once again deducting my salary without my permission like they have done previously and continue to do and nunc protunc it to the original date they started deducting my salary.

 

I have tried to get legal help, but the solicitors are charging a fortune even though I now qualify for legal aid because of the pay deduction. So I am having to fight them myself.

 

The tribunal award maximum £25,000, my company are saying I owe more than that so If with gods help I was to win the case I would want to receive that amount back.

 

Hope this clears things up a bit.

 

Thanks again

 

In the payrise letter is just states the figure per annum absolutely nothing else to do with part time wages. Thats why I said to my boss to prove his claims. because the

Edited January 15, 2013 by Sugar Plum

[stu007]

Hi

 

This is the ACAS link they also have an advice line and may be worth having a chat with them: www.acas.org.uk/

 

This is from their website:

 

When can deductions be taken from my wages?

 

 

One of three conditions has to be met for an employer lawfully to make deductions from your wages or take payments from you. The deduction or payment must be:

• required or authorised by legislation (for example, income tax or national insurance deductions); or
  
• authorised by your contract – provided you have been given a written copy of the relevant terms or a written explanation of them before it is made; or
  
• consented to by you in writing before it is made.
  

There are exemptions from these conditions that allow an employer to recover, for example, an earlier overpayment of wages or expenses to you.

 

----------------------------------------------------------------------------------------------------------------------------

 

Now i would write to them and ask for the following: (Always get proof of posting and keep a good paper trail from now on try to do everything in writing if poss)

 

1. Full breakdown of your salaried wages per pay date from April 2009 - April 2012 inclusive.

 

2. Copies of all Correspondance relating to the Pay rises for myself between April 2009 - April 2012 inclusive.

 

3. Copy of the Companies Policy on recovering Overpayments of Wages.

 

4. Full Explanation From Finance/Accounts Dept why it has taken over 3yrs for these suspected overpayments to come to light.

 

As I have previously stated to the company that I DO NOT give my consent for these overpayment to be taken from my wages but the company has done the opposite and started taking overpayments from my wages without my consent nor agreement.

 

Until this matter is resolved I refute the companies stance and DO NOT give my Consent nor Agreement for these suspected overpayment to be taken from my wages and request that this is stopped immediatley until this matter is fully resolved.

Edited January 14, 2013 by stu007

[Conniff]

If you have a credible argument as to why you should keep it. For example, a part-time bank worker who was overpaid £7,500 per year for three years has recently won a court case to keep her windfall. A tribunal ruled in her favour after she successfully argued that she had assumed the increase was the pay rise that she had been promised by her employers.

 

http://www.dailymail.co.uk/news/article-1193009/Barclays-bank-worker-given-double-pay-error-getting-it.html

[Sugar Plum]

Thank you great piece of advice,

 

I have done all the above in my grievance email I sent the same day I got the phone calll from the secretary, I said I absolutely unequivically do not constent to my wage deducted but was ignored. They had already deducted it because Im sure they put the salaries on payroll 2 weeks before you receive them.

 

I will put your no.4 into action and ask them to stop overpayment from my wages, which from previous history I expect to be ignored again.

 

So grateful for this info.

 

Jules

[Fox Morris]

One more point is that it is your employer disputing the £25k+ sum. You are only disputing the amount they have been deducting from your salary, which will be well under the limit for a tribunal. I would definitely explore that option further, especially in light of the decision Conniff outlined.

[stu007]

Hi

 

Quick question on your post#6 you say you sent it in email form now did you set you email to get a send/ recieve reciept so to speak. (remember they can deny recieving the email).

 

I would send your next correspondence by post and get proof of posting and if you are going to put about not giving consent nor agreement (now this is just me personally I would send it special delivery that way they cant deny not getting your letter. This is just my own personal opinion)

[Sugar Plum]

HI Stu007

 

I have copies of all emails between us, but yes I totally agree with you that they could say they didnt receive them.

 

I did do it today when I said I would attend the meeting on Thursday and that I would be recording it and asked him to confirm acceptance and receipt. Which he replied fine. I will put that into practice from now on with all correspondence. I also have authorised accesss to all emails coming and going from office.

 

The reason I have sent everything through email is to leave a trail for evidence.

 

They have been getting advice secretly from a solicitor, my boss has informed him not send through email as I have access to them. If they had nothing to hide they wouldnt have to do all these underhand tactics.

 

There problem is because the payrise was genuine they are trying everything to try and see if they can say its not.

 

Thanks for you advice

[Sugar Plum]

thanks Fox Morris

 

yes they are disputing over £25,000 they have included the tax and national insurance paid on it. Thats why I cant do tribunal I think.

 

Much appreciated

[Sugar Plum]

Thanks for the link hopefully I will have a strong arguement because I have my payrise letter.

 

So she should win too very pleased for her.

 

Whats wrong with these employers whats happend to sticking to there contracts bloody hell.

[Sugar Plum]

I would like to thank you all so much for your prompt advice, I feel more confident in moving foward armed with the knowledge you have posted.

 

THANK YOU

[stu007]

Hi

 

The problem you have with email is if you have no send/read receipt they can not only deny recieving the email but remember it is also the companies servers where that information is all stored.

 

All they have to do is ask the communications/internet team to remove all traces from the servers. (But if you have the send/read receipt they cant deny email)

 

This is why I always air caution when sending correspondence by email unless you have it set to get send/read receipts them they can deny getting email even if you have a copy of that email that is only your copy if you see what im saying.

Edited January 14, 2013 by stu007

[Sugar Plum]

oh right i understand I will put everything on to a USB stick tomorrow. I never thought of that but they probably have sneaky little gets hahaha (sorry)

 

thanks wish I could buy you all a drink for the advice.

[Sugar Plum]

Conniff Thank you

 

This case is identical to mine except that I have the actual payrise letter, hopefully this shows there is a precident set by the Tribunal but I dont know my bosses would probably ignore this too, do you think I should print a copy of this and show it to them or wait till I go to court, I dont know if I should forwarn them with what I have here.

[martin g]

Hello,

 

I think a phone call to the ACAS helpline would be useful.

I have spoken to them several times over the years as both an emplyee and as an employer and have a always found them to be knowledgeable and without bias.

 

Martin g

[steampowered]

I am unclear about your story. You say the company has only been deducting £500 a month since March - by my reckoning that works out as £5,000. Why you think you are claiming above £25,000?

 

There are a few points I think you should be aware of:

 

1) It sounds like you are out of time for an employment tribunal claim. You can only claim in the Tribunal for wages deducted in the last three months minus a day. Anything further back than that would need to be claimed in civil court on the basis of breach of contract. If the amount is above £5,000 then you probably won't be in the small claims track, which means you will have to pay the company's legal costs if you lose your case.

 

2) There is no such thing as an "estoppel claim". Your actual claim would be breach of contract. The specific type of breach of contract would be unlawful deduction of wages.

 

Generally speaking, estoppel is only a defence. With an estoppel you are basically saying that you admit the other side has a technical legal right to the money, but it would be unfair for them to exercise that right because you have changed your position in reliance on their actions. You would normally raise this where the employer has made an overpayment and seeks to recover this from the employee. But in your case you seem to be saying that your contract was for the higher amount in the first place. Hence there was no "overpayment" to begin with, so you don't need to rely on estoppel (and even if you did rely on estoppel, this would simply stop the employer from being able to justify the deductions - your claim would still be breach of contract).

 

3) I think there is a real danger that you will be seen to have accepted a reduction in wages as of March 2012. Generally, when an employer cuts your wages you have the option to accept that change to your contract or to resign (and possibly claim for unfair dismissal if you qualify). After a certain period of time you will probably be deemed to have accepted that change. 9 months is an awfully long time, after that period I think a court may well take the view that you accepted a reduction in pay from March 2012. This would mean you are now on a lower salary from March 2012, but it sounds like they would be on much weaker ground for any alleged "overpayment" before that.

 

4) I don't see the relevance of nunc pro tunc. It is not a phrase commonly used in the UK - be careful about relying on US websites, we do not have the same laws.

[Sidewinder]

1) It sounds like you are out of time for an employment tribunal claim. You can only claim in the Tribunal for wages deducted in the last three months minus a day. Anything further back than that would need to be claimed in civil court on the basis of breach of contract. If the amount is above £5,000 then you probably won't be in the small claims track, which means you will have to pay the company's legal costs if you lose your case.

 

 

Although for a claim of unlawful deductions a claim can be registered within three months (less one day) of the last in a series of deductions, so where these are ongoing the claim would still fall within the jurisdiction of an ET.

[Sugar Plum]

Sidewinder - Thanks I will start the procedure of the ET, because that was my understanding if its a continuation of deductions it goes from the last date.

 

Steampowered - They are saying I owe over £27,000.00 gross for the last 3 years. I cant work it out either they have listed a chart with figures but doesnt make sense to me, they have included Income Tax and National Insurance I know that much, but thats about it.

 

My reason for thinking about requesting an estoppel in conjunction with the unlawful deduction of wages - Breach of Contract if I had to go to civil court, was to stop them making more cuts because they cut wage before without consent so whats to stop them doing it again, but Im not an expert so I dont know it was a thought that I thought I would try but when I looked it up it didnt say anything about accepting to doing something wrong. My understand its NOW for THEN process

 

Nunc Protunc was created in England and I have found a number of cases where it has been used. I found it on a English Forum where they use it all the time apparently. ( I dont know information overload me thinks Im suffering from).

[steampowered]

Thanks for the clarification sidewinder. Perhaps someone else will have a different view, but to me it sounds like you will probably be within the Employment Tribunal's jurisdiction. You would be seeking a return of deductions which have actually been made (which presumably is much less than £25,000) and a declaration that further deductions are unlawful (this would follow from the judgment anyway). The acutal claim would be for much less than £25,000. It is probably better to be in the Employment Tribunal rather than court if you can to avoid having to pay court fees.

 

Am I correct in thinking that the company are saying you owe over £27,000 and are trying to deduct £500 a month until they get there? This would take 54 months. To me this sounds very as it would take them 4.5 years to recoup the money.

 

On the estoppel point, it is really a "fall-back" position. You would only need to rely on estoppel if there was an overpayment to begin with. Estoppel is really just a defence, it prevents someone from relying on their technical contractual rights. Your claim could follow a structure something like this:

 

1) The full background, including all dates and details of the recent deductions.

2) It was a term of the Claimant's employment contract that he would be paid [salary] from [date] 2009. This was made clear in the payrise letter dated [date] and by the Defendant's conduct in paying the Claimant [salary] from [date]. Accordingly there has been no overpayment and the deductions constitute a breach of contract and unlawful deduction of wages in breach of s13 Employment Rights Act 1996.

3) Alternatively, if (as is denied) the Claimant's employment contract was not for [salary] from [date] 2009, the employer is now estopped from recovering the overpayment. The payrise letter dated [date] and the Defendant's conduct in paying the Claimant [salary] from [date] constituted a clear representation that the Claimant's salary was in fact [salary] from [date]. In reliance on that representation, the Claimant has changed his position and cannot afford to repay the money [describe where the money has gone]. Given the period of time which has passed and the fact that the Defendant did not raise any objection until [date] 2012, if there is any overpayment (which is denied) it would not be just or equitable to require the Claimant to repay such overpayment.

 

Nunc pro tunc is a bit of an old fashioned phrase. It basically means the court can do something retroactively which should have been done before. In particular, it could give a court order or hearing an earlier date than the actual date. It is really aimed at a situation where the court has screwed up in some way. I don't think its relevant for you.

 

Have you tried to settle this amicably by raising a formal grievance? I am conscious that you are still working there. It generally isn't a good idea to sue your current employer unless you really have to, for obvious reasons.

[honeybee13]

Hello there.

 

You might consider editing out your name in the email, as it's not the same as your username. It keeps things more confidential.

 

HB

[honeybee13]

Hello again.

 

How did you 'come across' the email, by the way? It sounds pretty revealing.

 

HB

[Sugar Plum]

thanks for that

[Fox Morris]

I would strongly recommend that you delete these posts, summarise their content in your own words, or wait until the information is formally sent to you. Communication between your employer and his solicitor will always be considered confidential. Wrongfully disclosing confidential information on a publicly available forum is almost certainly a gross misconduct offence and probably all the excuse they need to terminate your employment.

[honeybee13]

Hello julesmo. I've been concerned about you publishing these emails since I saw them earlier and so are Fox Morris and the site team, in case it causes you problems.

 

We have taken down the emails, for your protection.

 

HB