This is an NHS employment related question.1. what steps should i take ?2. Do i meet up with employer if they demand a meeting ?3. If it went to court - how do i defend myself.The details below.I am a doctor and this relates to my second job in a hospital.I started employment in april 2003 and worked 5 sessions a week ( which included operating, ward work etc).In june 2009 – the unit was sold to a private provider and I lost 3 sessions I received no letter, email or any notice, just word of mouth and one day the ward where I worked closed – That’s it.Prior to this, I was worried and wrote to my manager ( MARCH 2009) who clearly mentions in her letter – I have no idea, discuss this with the line manager , who said he knew no more – I have a copy of this letter.And then the ward closed and I waited for redeployment which never happened.The employer continued to pay me for all sessions ( five – although I was now working only 2 sessions)until Sep 2010.I continued to work 2 sessions in the same hospital and they were aware of my availability and my line manager said that things were evolving and asked me to wait. No more letters were written.Now the employer wants the money back. ie the extra payment from 2009 to 2010.During this time, I did not undertake any paid work elsewhere.I have written to the employer with a copy of their manager’s letter . They agree that they forgot to give me any official notice when my 3 sessions ended abruptly.Now all I get is demand for repayment – about # XXXXXIt is clear that they dismissed me without warning and this is against employment rules – this is what my union is saying.
Province/Country relating to question: wiltshire/ uk
talking to my union
Hello and thank you for your question, which I will be happy to assist you with.
The starting point is that if you have been overpaid by your employer, then that is not money to which you are legally entitled and as such it should be repaid. As you are no longer an employee of the company, the only way for them to pursue this is to treat it as a civil debt and sue you in the County Court.
However, an employee may be able to use the defence of ‘estoppel’ to resist an employer's recovery of an overpayment on grounds of unfairness. In the case of County Council of Avon v Howlett  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 their mistake, the teacher had spent most of it. The Court of Appeal held that the defence of estoppel prevented the council from recovering the whole sum of the overpayment.
In reaching its conclusion, the court identified three conditions that had to be satisfied for an estoppel defence to succeed:
The Avon case was decided in 1983 and the law in this area has somewhat changed since then. In Lipkin Gorman v Karpnale  2 AC 548 the House of Lords formulated the more flexible defence of "change of position". This defence involves a recipient not having 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 Avon) they may only be ordered to repay the money they have not spent.
More recently, in Vaught v Tell Sell UK Ltd  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 of the circumstances of the case, it would be unfair to require him to repay, either wholly or in part, the sums which had not been repaid.
So whilst the employer is justified in pursuing the money at this stage, there are ways of defending such a claim. It may be worth sending the employer a letter, refusing to pay them back and outlining your reasons for doing so, relying on some of the above factors in your argument.
As top your employment being terminated at the time, you are no longer able to pursue this as the time limit for claiming unfair dismissal is 3 months from the date you were dismissed.
Many thanks for your reply - very helpful. Just some minor points
I am still an employee - ie, work one session a week with the same employer. also my sessions were reduced without any consultation - will this form part of my defence if it went to court ? How does one prove to court that the money was spent ?
ok the fact that you are an employee will be relevant only in a sense that at this stage the employer can technically try and deduct any previous overpayments from your current pay. Hopefully they will not do so. The reduction without prior notice can be mentioned although I can't predict whether the court would treat it as being relevant. As to proving how you have spent the money, you may be required to produce historic bank statements, although these are easily obtainable from your bank
One last doubt - I feel that the employer tricked me by paying me well past the 3 to 6 m 'unfair dismissal ' claim period by paying me extra. During this time my Line manager kept saying that i could be re-instated and knew that i was available for work. so i feel that the employer paid me to take me well past the 'time-limit' for registering a case. I wonder whether there is precedent in the system ? ie employer or management deliberately overpaying to mask the effect of no notice or will this arguments form one of the conditions for stoppel.
That is a very specific scenario and I am certainly unaware of anything similar happening before or being reported. The problem would be proving that this was actually the case. It is something that would be rather impossible to prove without any specific evidence
Expert in UK Employment Law
Hello, Following our recent conversation, this is just a quick follow up to see how you are getting on and to check if my advice has been helpful in dealing with your query? I look forward to hearing from you.Regards, Ben
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