Overpaid now being dismissed! Help!

[noobey]

hey guys,

i did a search before posting, so sorry if i posted anything wrong.

 

basically ive been working for a large (global) IT company for just under two years now, part time (3 days a week).

 

In October 2007 i got promoted and my salary went up by nearly 35%.

 

This week, on Monday 15th Dec 2008, i was called in to see my line manager and was informed that they had been paying me a full time salary since my promotion, instead of a part time salary.

 

I was genuinely shocked and had no idea. honest.

it was a recorded interview, and i immediately said id be prepared to pay it back, but could not afford the lump sum.

i acknowledged that my employer made a mistake and that i was partly to blame also.

 

however, today, i have been suspended and am due to go in for a disciplinary on Tuesday 23rd December 2008.

In the paperwork for the disciplinary it states that i have commited an act of gross misconduct by not informing my employer of the overpayment, and that this is a breakdown in trust and confidence and can result in my dismisal.

 

i was absolutely shocked when reading this.

i asked one of the hr officers what is likely to happen to me in the disciplinary (off the record) and she said it is fairly likely i will be dismissed. as this is what they have done to someone else this happened to a while back, as it is company policy.

 

this is unbeleivably bad news.

i still have a mortgage to pay, but my company is one of the worst hit by the credit crunch, and i feel they would rather get rid of me than allow me to work of the debt generated.

 

can anyone offer any advice for me to use in my defence when entering the disciplinary please?

 

i have no idea where to begin.

 

 

thanks for any and all help provided.

[version302003]

They can't dismiss you for for a mistake "they made" which they have admitted in the recorded interview.

 

It is upto them to inform you of their mistake and not you to inform them, esp as you didnt know.

 

Sounds like they are trying to reduce numbers by any means by using the old "trust and confidence" issue.

 

If you agreed to pay it back (installments or not) they have no case for dismissal.

 

I would start gathering evidence.

Edited December 18, 2008 by version302003

[noobey]

thanks for the reply!

it makes me feel a little better.

im not doubting the validity of what your saying, but do you have the link to any kind of legal document that i could possibly take to my hearing with me at all?

 

 

thanks again!

[version302003]

Hi, im currently looking for you now and might take a while. Im sure others with more knowledge / expertise will be online this evening so hang in there. It sounds like they will try to dismiss (based on what they said in the letter)on the trust issue rather than the actual over payment, ill try and find out more on that also

 

One thing to do is to ring ACAS, they are very good.

Edited December 18, 2008 by version302003

[noobey]

thanks so much for the prompt response!

 

ill keep my fingers crossed.

[version302003]

Hi noobey,

 

First I got to say that in all reality an employer "can" dismiss for any reason they like BUT and its a big BUT, that does not mean the dismissal is fair, lawful and without repercautions at an ET.

 

If they have it in their heads that they will dismiss on grounds of gross misconduct(whether they are right or wrong), your only cause of action would be through the ET(employment tribunal).

 

Im pretty sure you don't want that and would rather stay in your position and recify the mistake(they made) as opposed to being dismissed and going down the ET route (and hopefully winning) but it maybe your only course of action if they do dismiss.

 

To dismiss you for gross misconduct(of an implied term - trust and confidence) they will need to demonstrate that:

 

1) The overpayment was your fault and / or

2) You knowingly withheld the information of the overpayments from them (breaking their trust and confidence in you).

 

I dont have a link to info about something like your case (but i will keep looking).

 

If you havent already done so ring ACAS on 08457 47 47 47

Its free and confidential.

[p_cas]

Can you say why you told them that you were partly to blame?

[noobey]

Can you say why you told them that you were partly to blame?

hi,

yes in hindsight i should have picked up on it from looking at my bankstatements, payslips, etc but didnt.

 

anyway, my union (unite/amicus) were absolutely rubbish, and i think the £10 per month they get is a complete waste, will be cancelling that asap!

 

today i had my disciplinary, and was as honest as i could be, maybe a bit too honest.

my employer is not firing me, but is putting my on my final written warning, despite the fact that i have never been in ANY trouble before. i am currently trying to figure out how to appeal this.

 

secondly, they want me to pay the whole cash sum back within 12 months. this simply is not possible, i have asked for around 24-36 months to pay it back, but they are not accepting this and now want to see all my bank statements, mortgage details, etc. they have given me 7 days in which to comply.

 

 

what a crap situation, i know it could be worse, but im extremely unhappy with how im being treated here but feel i have no way of fighting back against this billion pound organisation.

 

 

any advice from here would be appreciated.

[version302003]

Hi noobey, its good to hear you have not lost your job at least. However in Oct 2007 you got a promotion and a pay rise and it was at this point that the overpayments started, therefore it would not be obvious to you that the pay rise was wrong.

 

In order to show that an overpayment is not recoverable, then the employee must demonstrate three things. Firstly, it must be shown that the overpayment was the fault of the company (it was) and not the employee. Secondly, it must have been reasonable for the employee not to know that they were being overpaid.(just proved that above) Thirdly, the employee must have acted to their disadvantage or the assumption that the payment of salary was correct (for example by spending the money!).(you have spent it) The most common difficulty for employees is the second condition since it is often obvious when an overpayment has occurred. It is not acceptable for an employee to assume that they have received a substantial increase in pay unless there is some reason to believe that this is the case.(and the reason was that you got a promotion and a payrise at the time of the overpayments started)

 

As far as I can see, the amount is not recoverable. Maybe something to think about over xmas. Heres alink for further info which includes repaying the overpayment Overpayments

[noobey]

hi, thanks again for the advice, version.

when i read your posts i get really hyped up with my can-do attitude, but when i go and speak to HR, it never quite comes off like that! : )

 

i have agreed to pay it back, as well as taking part of the blame, as i felt it was the right thing to do.

i didnt know my employer would behave in the way that they have, but im an now going to have to spend new years trying to come up with an action plan.

 

besides my union is there anyone else i can go to to act on my behalf in a dispute with work?

 

 

 

thanks.