Opinions On Employment Law Wanted

[Rich3236]

Well just want to get other peoples opinions on this.

 

In March last year i moved from Germany to the England as part of my Job, my employer pays us £300 a month more for living in Germany than we get in the UK, due to living expenses. Now when i moved back to England these payments should have stopped, (THEY KNEW I WAS MOVING BACK TO ENGLAND IN DEC 05) so they had plenty of time to sort it out. When i moved back to england i did not recieve my wage slips as they were still being sent to Germany, so i did not realise i was still been overpaid and i was spending the money. well in May i was told that i owe them over £500 in overpayments, they then got me to pay this at £214 a month, this left me very short and we struggled for a while and our baby had just been born.

 

Then i found this whilst surfing employment law.

 

EMPLOYMENT RIGHTS ACT 1996 ss.14 and 16

 

 

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BASIC POSITION

The general rule is that an employer may not make any deductions from wages (see DEDUCTIONS FROM WAGES etc/deductions from wages, salary or pay/general rule (basic position) ).

Exceptions to this general rule are set out in ERA 1996 s.13(1), 13(4) and ERA 1996 s.14. The main exceptions are:

• deductions required or authorised by law (such as PAYE or under an attachment of earnings order - and see Employment tribunals/enforcement of tribunal awards ) or by the worker's contract (ERA 1996 s.13(1)(a));
  
• deductions authorised by the employee in advance of the event in respect of which they are made (ERA 1996 s.13(1)(b));
  
• deductions made "on account of the worker's having taken part" in a strike or other industrial action (ERA 1996 s.14(5)).
  
• deductions to reimburse the employer for overpayment of wages or expenses (ERA 1996 s.14(1)). If an employer exercises this right the employee will not be able to claim that the deduction contravenes ERA 1996 s.13(1) but nevertheless in some circumstances the employee might be able to reclaim the money from the employer. This could happen if the employee genuinely had not realised he had been overpaid and, in all good faith, had spent the money on things which he would not have otherwise bought. In that case the courts would be likely to hold that the employer was (in technical language) "estopped" from denying the employee's claim and would order the employer to bear the cost of his own mistake. As the employee's claim would be a common law or contract claim it would have to be made in the County Court (or High Court) not to an employment tribunal (unless it arose or was "....outstanding on the termination of the employee’s employment" - see notes at Employment tribunals/contract claims ).

Errors of computation do not count as deductions (ERA 1996 s.13(4). They must of course be made good but they are not infringements of ERA 1996 and the ERA 1996 remedies therefore do not apply (see DEDUCTIONS FROM WAGES etc/remedies of employee ). For a recent discussion of exactly what amounts to an "error of computation" see Morgan v Glamorgan County Council [1995] IRLR 68.

See also Trade union matters/deduction of union dues from wages .

 

 

This to me says that i have recourse to request the money back as i spent the money in good faith and suffered as a result of their mistake.

 

What do you all think?

 

I was thinking that i could send my employer a SAR for the signed agreement where i agreed to pay back the ammount in installments, this would give me the exact ammount i might be able to claim.

 

Then send a nice letter requesting the money back as per bank claims!!!!!

 

Any suggestions please?

 

Rich3236

[Rich3236]

Bump.

[pt2537]

Hi,

 

i looked atthe 1996 employment rights act as amended and my observations are that under the act your employer would be correct in recovering an over payment under section 14 Excepted deductions

 

(1) Section 13 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of—

 

(a) an overpayment of wages

 

the question that needs to be considered is if there is any way it could be reasonably said that you would be aware that by moving from Germany to the UK you would incur a lower wage, i assume that there is nothing in your contract of employment or employee handbook that would indicate this? if your employer can establish that you would have been reasonably aware of the over payment then they are entitled to reclaim any such overpayment.

 

 

thats my opinion of course

 

 

 

regards

paul

[ScarletPimpernel]

From your location, and that you moved from Germany to UK, are you with the military?

 

There are specific rules rules that apply to serving personnel and civilians who have UKBC status with regard to overpayments of LOA/COLA.

[Rich3236]

Pt2537,

 

That would be true but due to a substantial pay increase at the same period i was not sure what i would be getting paid then so as i did not have my Payslip (which gives a break down of all payments and deductions) i honestly believed that i was owed that money and spent it accordingly. There is nothing in our employment contract just everytime they say you owe them money they get you to sign to say they can recover it straight from your wages.

 

Also i did not reasonably expect to be paid more as i thought with four months notice they would be able to log on the computer and cancel payments of that allowance (THIS CAN BE DONE AT THE TOUCH OF A BUTTON)

 

Does that make my case stronger in your opinion?

 

ScarletPimpernel, Guilty as charged i am a member of the Armed Forces

 

What are these rules you speak of? Anything that can help me?

 

Rich3236:-)

[pt2537]

Hi Rich,

yeah, that does change things slightly. i was just trying to highlight that just cause the wage slips werent present to indicate what you were being paid, they could have alleged that it was in your T&Cs or handbook which they could then say you would have known your wages would have been lowered so should have realised

 

 

however, the fact that you are in the army may make a difference. i would have to look at the statute to see if there are any permissable derogations which would affect armed forces.

 

however your arguement would appear valid as to the reasons why you spent the money believing it was yours to spend.

 

have you spoken to acas? they may be able to help

 

goto Acas - Home and you may be able to find the answers

 

 

i hope this helps

 

regards

paul

[Rich3236]

I appreciate that pt2537, thank you for your invaluable opinions:-)

 

I will have a look at that now and see if there is anything there!

 

Would you agree that i should go down the SAR route and then a letter requesting the money or can you or anyone!!! think of a better way?

 

Rich3236:grin:

[ScarletPimpernel]

Rich

 

I'm no pay expert! However, I do know that this sort of thing happens all the time. Your first port of call should be your RAO, where the pimply troopers of AG's Special Pen Service will deal with your problem - or not, possibly . If they've already taken the money, there's probably not much they can do - much will depend on how good your Pay staff are, and whether you are on JPA yet, in which case they'll point you at JPAC, the world's most unhelpful Helpline. Ultimately you may want to consider seeking redress through an AGAI Ch70 complaint.

 

For more detailed and specialist advice, I'd suggest posting on British Army Rumour Service > > Forums > > The Serious Bit > > RHQ (Personnel, Pay and Discipline)

 

You can SAR the Army (using MOD F1694, since you ask), but it's probably not the best way to deal with this.

[davjoh]

You may well have been able to use this argument prior to signing an agreement to pay it back, but you wouldn't be able to now, since you have contractually commited yourself to repaying the balance.

 

The distinction between this and bank charges is that your situation does not relate to the levying of a penalty.

 

HTH

 

David

[Rich3236]

Thank you for your post David but it doesn't take into account that i only justr realised that i could get it back! Because it is in the law that under certain circumstances the payments can be claimed back.

 

For example just because we signed an agreement allowing the banks to take charges from our accounts (at the time believing this to be legal) does not mean that we are not allowed to request that money back after we now realise that the charges may be illegal.

 

It is the same with this, just because i thought i had no right to keep the money and agreed to pay it back at the time does not mean that i can not request the money back now that i discovered i may have the right too.

 

The agreement was for the ammount i was to repay them each month and i did not admit liability by signing it it was just a "Payment Plan".

 

Does that make it abit clearer Davis or do you still dissagree?

 

I know that this is different to bank charges i was just wondering if i could use the same format ie:

 

SAR request (to obtain exact figure taken)

Initial Letter Requesting money back

Letter Before Action

Lodge County Court Claim

 

So i never argued that is was a penalty only that under the Employment Rights Act 1996, i could have recourse to claim the money back as i had reasonably held that the money was owed to me and spent the money in good faith.

 

Thank you for your post its good to get as many opinions as i can so that i can decide whether to go ahead or not.

 

Rich:-)

[ScarletPimpernel]

I know that this is different to bank charges i was just wondering if i could use the same format ie:

 

S.A.R - (Subject Access Request) request (to obtain exact figure taken)

Initial Letter Requesting money back

Letter Before Action

Lodge County Court Claim

 

So i never argued that is was a penalty only that under the Employment Rights Act 1996, i could have recourse to claim the money back as i had reasonably held that the money was owed to me and spent the money in good faith.

 

 

 

I mentioned this at lunch today, and our Chf Clk suggests that APC will tell you that they can deduct any overpayment when they like, that it's in teh Army Pay Manual, and ignorance is no excuse. It's cr*p, but it's how APC have got away with messing up soldiers' pay for years.

 

Incidentally, if you issued a LBA and then went to court, who would you name as the Defendant?

[Rich3236]

That's where i would struggle ScarletPimpernel, if it got to that stage i would have to look at it further, i think it may have to be my unit as i am not sure ARMY would look good on the claim form.

 

In truth i do not know who i would claim from and legal advice would be sort at that point.

 

Just because it is in the Pay Manual does not mean they are exempt from the Law! It was once in the Army manuals that if you were Gay then you would be Admin Discharged but because it is now illegal to discriminate against the Gay community they can no longer do this.

 

I believe that it could be succesfully argued that just because the manuals say they can deduct it doesn't mean the exemption from the law don't apply to them.

 

Yeah i told my chief about it a while ago and he basically said they would tell me to go swivell. But i suppose until someone actually tries claiming this back the Military Community will continue to get messed around.

 

I just found out that as married person i will now have to pay for Accomodation, food and council tax when i am away on a course, any course even if the unit forces me to go on it. As well as still paying rent and counsil tax on our Service Families accomodation. I will still have to do a full shop so my wife and child can eat. I think it is discusting that they can do this.

 

Bit off tangent at the end but there you go.

 

Rich

[davjoh]

I understand you are not claiming this to be a penalty. Let me explain the point I was making:

 

You are overpaid £x amount. Your employer asks for it back. You agree to give it back. In such circumstances you have formed a contract to repay. The fact that the ERA and associated guidance provides that in certain circumstances you shouldn't have to is irrelevant, since you have formed a new contract.

 

IF HOWEVER it had happened like this: You are overpaid £x amount. Your employer asks for it back. You tell them you had a reasonable expectation the payment was correct and you acted in good faith. You do not agree to pay it back. In such circumstances your employer would either: 1. drop the matter, or 2. make deductions anyway (in which case you would have a claim for an unlawful deduction), or 3. bring a claim against you in the County Court for the overpayment (in which case I doubt they would have made a successful claim).

 

The reason I mentioned bank charges for comparison is this: had they asked you to pay it back, plus a penalty, you would have grounds for arguing they have breached the common law and so the contractual agreement to pay may be void.

 

The only other circumstance in which I think you would have a legal basis for trying to recover the money is if they had made threats prior to you agreeing sign an agreement to pay it back. For example, if they said they would take you to court if you didn't agree to repay you could argue duress, but even this would be a long shot.

 

Generally speaking there is an onus on a person to make such enquiries as may be necessary into their position in law, prior to entering an agreement, which is why I feel you can't rescind the agreement or recover the money. Incidentally, this is exactly why "I didn't know I was entitled to" is not considered a mitigating factor for out of time claims in many areas of law.

 

Bearing in mind the above I have to say I stand by my statement that you would be wasting your time trying to pursue this in a litigious fashion. That said, you could always set out the circumstances, and the law, and ask them to make an ex gratia payment to you. My experience within the Civil Service suggests they may be amiable to this.

 

Does this clear things up a little?

 

David

[Rich3236]

I understand where you are coming David.

 

I will probably go down the line of a letter asking them to repay as i spent the money in good faith and still include the ERA 96 just as a legal basis for why i believe i am entitled to the money.

 

Maybe pt2537 can shed a bit of light as to whether me realising now after i have paid the money back that i may have had recourse to be entitled to the money? Hopefully when he is back he can comment.

 

Rich:D

[ScarletPimpernel]

To a great extent the difficulty with dealing with these problems within the military is that the culture is that 'these things happen. They always will, and we can do nothing about it.'

 

Those not familiar with it should know that the soldier cannot contact those who pay him; he has to go through intermediaries, who may or may not be interested in helping. If he complains, he might find himself the focus of unwanted attention. Pick up a copy os 'Soldier' magazine and see how many complaints there are in the letters page, followed by dusty replies by some senior officer along the lines of 'Cpl X should have gone to his RAO and completed AF6478 in quadruplicate, ensuring that the blue copy arrived in Glasgow on a Thursday when the wind was blowing from the southeast. If only soldiers followed the correct procedures blah blah...'

 

The introduction of JPA, in which all pay and personnel administration is centralised, has simply provided a new way for things to be messed up. I know one senior officer who logs in to be told she is in fact a male Warrant Officer with children , in an entirely different corps and location! Still, the system was designed by serial failures EDS, so this was entirely predictable.