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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 47603
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi there I work for the public sector & have been in the

Customer Question

Hi there

I work for the public sector & have been in the same role since march 2010. In April 2011 I went on maternity leave until feb 2012 when I returned to work on a part time basis, 3 days a week. I went on maternity leave again in February 2013 to have my second child.

I have recently received a letter from my employer stating they believe they overpaid me since February 2012 as they didn't correctly adjust my salary for my reduction in working hours & that they believe I owe them close to £17000 & wish to arrange a meeting to discuss repayment schedule. I have arranged a meeting for Wednesday this week & on confirmation of that meeting I was told the figure I owe is closer to £11000.

My last remaining salary from my employer this month was withheld, aside from my statutory maternity pay as recompense for the overpayment. In addition to a suggested repayment schedule of £150 a month.

I do not currently have an income, I have 2 very young children to take care of & have spent my salaries for the past 2 years as any normal person does as I didn't realise the overpayment was happening. I am very stressed about this as I do not know what I can do. I cannot actually afford to go ba k to work as I will not on the reduced salary earn enough to cover childcare costs for my 2 children. I spoke to ACAS who informed me there was a case of Avon council vs howlett in which a judge upheld that in a similar situation the money should not be paid back & ACAS suggested I get legal advice to ascertain whether this could also be the case in my situation.

I have to go to this meeting on weds (taking my
Submitted: 4 years ago.
Category: UK Employment Law
Expert:  Ben Jones replied 4 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today.

Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded.

For now please let me know what your specific question is?

JACUSTOMER-bmbzxdp5- : As Per my initial enquiry & specifically how I ascertain whether I legally have the right to challenge the request for return of overpaid sum or at least a vast reduction in it & a delayed repayment until I am working again
Ben Jones :

Thank you for your patience. 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 it should be repaid.

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. For example, in the case of County Council of Avon v Howlett, 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 that money. The Court of Appeal held that the defence of estoppel prevented the council from recovering the whole sum of the overpayment.

Case law has evolved somewhat since then, but it has become an acceptable principle that 'estoppel' can apply if the following conditions are met:

  • The employee genuinely believed they were entitled to the money, or did not even realise that they were being overpaid
  • The overpayments were made following an error on the employer's part
  • The employee has since 'changed their position', meaning they have spent the money in question

So whilst the employer is justified in pursuing the money at this stage, there are ways of defending such a claim. However, that will only potentially be possible if the above conditions are made and if the employee was aware they were being overpaid and did nothing to rectify that, then it is unlikely there will be a defence.

Ben Jones :

Please let me know if this has answered your query or if you need me to clarify anything else for you in relation to this?