Help - I've been overpaid for 18 months!!!

[Harrison04]

NIGHTMARE!!!!!!!!!!!!!!!

 

I've worked for my current employer for the last 10 years. I had a daily commute of between 2.5 & 4 hours which took its toll on my work/life balance therefore appx 18 months ago i decided to reduce my working hours from 37 to 30 hpw. I started my new part-time hours wef 1st July 2007.

 

I roughly estimated that the reduction in pay would be £600 gross per month with appx £200 (a third) for tax. Unfortunately, I did not deduct the tax from the gross to estimate the net hit on my pay but stupidly had it in my head that the net effect would be around £200.

 

For 8 months prior to my reduction in hours I had been receiving an acting duty payment for providing backfill for my manager who had been seconded to another post. In June 2007 I also received my annual bonus payment. I was awarded an annual pay increase wef from July 2007. Therefore with the movements in salary in around the time of my move to part-time I simply did not realise that the company had not reduced my annual basic salary as the reduction in my net pay was around the £200 mark that I had been expecting.

 

Anyway, July 07 was my first flat rate payment and I believed it to be my part-time salary.

 

In Feb 09 I secured myself a new job in another department within the same company. I agreed to return to full-time hours and accepted the job at exactly the same annual salary that I had been receiving for my existing job . My new manager contacted HR to confirm my salary so that she could send me out an offer letter. HR advised my new manager of my annual salary but insisted that this was the salary that i was being paid for part-time hours. The manager contacted me & I insisted that £44K was my full-time salary. I checked my Feb 09 payslip which had a £600 deduction on the first line of the detail section and I assumed this to be the pro-rata deduction . I heard nothing more about the matter and I was offered the new job at £44K.

 

I worked a months notice and on my last day in the department my old manager advised me that HR thought that they had been paying me full-time for the last 18 months resulting in a substantial overpayment . I reiterated my findings about the deduction on the Feb 09 payslip and still believed that i was being paid part-time. I went home that evening, opened about half a dozen payslips to discover that it was right that i had been paid a full-time salary for the last 18 months.

 

I started my new job the following Monday, 31st March and immediately notified my new line manager of the issue. She advised me to document a timeline of events over the last 18 months which had led me not to notice the overpayment. She then took the matter up with HR. A further couple of weeks went by and I still heard nothing. I went on holiday for a week returning on 23rd April. On Friday 24th I was invited to a performance review with my ex-line manager. At the outset of the meeting he informed me that there was to be a formal investigation into the matter, he was investigating officer and it may result in a disciplinary. I was horrified.

 

The following week I received a letter inviting me to an investigation meeting, I took my manager along with me as witness and presented my case. I then heard nothing for a further two weeks.

 

In the meantime, my ex-line manager downgraded my personal integrity and my overall performance rating on my performance review as a result of the ongoing investigation. The impact of the investigation was not discussed during our performance review meeting and came as a complete shock to me, especially as the outcome of the investigation was not known at the time. I have requested three meetings with the ex-line manager to discuss the matter and he has not turned up for any of the meetings. Consequently, I will receive a smaller percentage of the annual pay award this year.

 

Last week the doctor signed me off sick with work-related stress as the lack of communication and the 'not knowing' has made me ill.

 

I went back into work on Monday and my new line manager 'informally' advised me that the reviewing officer of the investigation had concluded that I had acted in good faith throughout and there would be no disciplinary action taken against me . However, the company will be approaching me for a full repayment . He also advised me that as the overpayment came to light in Feb they would be requesting immediate repayment of the overpayments made since that date. I indicated that this would only be March payment as I returned to work full-time in April therefore the salary has been right since then. I got the impression that HR are going to request Feb & Mar overpayment however I was not aware of the overpayment until the end of March therefore the money has been spent on normal household expenditure.

 

To this date i have not once had any contact from HR. I have not been advised how much the overpayment is or how much they are planning to recover. This situation has occurred previously and I believe that HR came to an agreement of a 50:50 split given that the overpayment was their error. To my knowledge the investigation proved that the overpayment was as a result of errors made by the company in my situation - am i right to assume that they have set a precedent and that i should expect the same offer of a 50:50 split? Also, my circumstances have changed as i have now returned to work full-time and have incurred additional childcare expenses as a result. We do not have excessive amounts of disposable income and generally exist on a day to day basis somewhere around the limits of our overdraft therefore any significant monthly repayment would be difficult to manage but a manageable monthly repayment may mean that the repayment term is a number of years.

 

ANY advice would be welcome

 

[Guest Old_andrew2018]

Bump

[The GodMother]

sorry i am un able to help in this area but i can help by saying maybe you should come to sum type of written agreement with HR to say that you can have a set amount taken out of your wages each week/month for this overpayment.

[Vindicated]

Hmm, Employment law is quite a tricky area in past experience and hearing through the grapevine, The company is at fault however for 18 months to go un-noticed is quite a considerable length of time, for both yourself and the company.

 

I understand its not high on your agenda as a parent etc to check that the company have amended your pay correctly, what i would suggest "strongly" is if you have a union rep then speak with them...In black and white, basically it was the companies responsibility to amend your salary accordingly, however as an employee you do have a duty of care to ensure that any amendments are made to a reasonable extent.

 

As i said...its a tricky area...and i would strongly recommend with the possible sums involved you speak to your union representative or better still a solicitor who can give solid advice, failing that possibly the Citizens Advice Bureau.

[The GodMother]

CAB will not be as useful as ur union rep or SOL. Most cab are not that good and tend to fob ppl of. Its the general experiance on here anyway.

[Harrison04]

Thanks for your input

 

I'm still waiting to hear from HR and i don't really think that i can do much until i know what they are going to propose. I am really hoping that they will agree to a 50:50 split as they have admitted that the company was at fault. They have also acknowledged that i didn't know that i was being overpaid through the investigation and their decision not to take disciplinary action.

 

I contacted an employment lawyer quite early in the proceedings and think that i will probably go back to him when i receive HRs proposal. I've read quite a lot about the principle of estoppel but i'm not quite sure how or when to discuss it with HR as i do not have a contact within HR for this matter yet.

[Harrison04]

bump

[The GodMother]

until you know more there is not a lot that can be done.

Have you spoke to your union rep and see what they suggest?

 

Have you been back to the solicitor with the info u have got. I will admitt spending money on sols might be money down the drain as your union may be able to help u with sols as most that i have heard of have sols attached to them which the members can use either with full payment or partial paymants from the union.

[Harrison04]

I'm not a member of the union and therefore do not have access to a union rep. I have been waiting to receive a payment plan from HR but have still not had anything in writing from them. I have not even had a letter to inform me of the findings of the investigation.

 

I approached my line manager yesterday. She informed me that she has been chasing HR and, after a week of chasing them they have provided a simple spreadsheet which details the gross overpayment amount for each month which totals £14K over the 18 month period. They have not given any details of the net amount nor proposed a monthly repayment plan. I have a meeting to discuss this matter with the director of the business unit that I am currently working in.

[Vindicated]

The fact you are offering to pay 50% is very gracious on your part and to be honest id be surprised if the company refused this.

 

Its ashame you are not a member of any union, its very handy in situations like this.

 

I would keep on at them, even get in touch with HR yourself and stress the fact you want to resolve this sooner rather than later...if god forbid it were to go to tribunal etc etc then it would look in your favour if you've done all you can to get updates or come to some form of agreement

[Catlover64]

Have you tried ACAS? They're quite good for disputes of this nature.

 

Don't have the number off-hand, but it should come up on Google...

[shywazz]

Do remember you have paid tax and ni on these earnings, therefore not every penny will be repayable by urself, as the tax etc will have to be notified to make admendments too.

[Harrison04]

Thanks for the comments everybody - its very reassuring to know there are people out here who want to offer help to others!!

 

I met with my one of the management team today who presented HR's repayment plan proposal which was no more than a spreadsheet detailing the gross amount that I had actually been paid and the gross amount that I should have been paid - and one of the entries was actually incorrect!

 

It was put to me that the company proposed to reclaim the difference on a monthly basis for 18 months until all the money has been repaid.

 

I asked about the position regarding gross vs net etc... I also suggested that there were grounds for claiming a defense of estoppel but I would be willing to settle for a 50:50 split with my 50% being paid back over the coming 18 months. I highlighted that I have given a loyal service for over 10 years and have worked many hours over my contracted hours which I have not claimed for.

 

Management have taken this proposal back to HR for their consideration, now I have to sit, wait and hope

[Harrison04]

Sorry, what I didn't mention was that this situation has arisen before and the previous employee was offered a 50:50 split on the overpayment therefore I would like to think that the same consideration would be offered to me.

[Harrison04]

Well, the fabulous news is that the company contacted me this afternoon to confirm that it has written off the debt incurred during the first 12 months of the overpayment period. The gross figure outstanding is now £6K with a net total of appx £4K which & they will accept payment back over a two year period so that it does not cause us too much hardship - RESULT!!! I'm one very happy bunny this evening.

 

On another note, I hope that this story gives some hope to the other poor people who are currently still suffering and trying to resolve difficulties with their employers. I hope the story goes to show that a mutually acceptable arrangement can be agreed, god knows how many times I thought that I wasn't going to be able to negotiate a position that was acceptable to me!!

 

Good luck everybody

[The GodMother]

I would advise that before accepting that you ask for the company to put it in writing. Not just the bits they want to the whole thing as in what amount they have written of how much they want you to pay back gross and net with how much they will be wanting to take out of your wages each month. Ask them also to send 2 copies of a agreement both signed by HR so should it be acceptable you have in writing what was agreed to.

[Vindicated]

Yep I agree, Get it in writing on headed paper, mailed to your home address and keep a copy for backup!

 

Dont want them coming to you 2 yrs later biting u in the behind You're more than welcome for any advice ive given, and im sure i speak for everyone else here too

 

But GET THAT OFFER IN A LETTER!! Id highly recommend the Head of HR if there is one to sign the letter, no better place than the top of HR! Keep your back safe always

[Harrison04]

WELL!!!.............. it would appear that i celebrated a little too soon.

 

Payroll had made a change to my SAP record to calculate how much I had been overpaid, unfortunately they forgot to change the record back again. When SAP was closed last Thursday in advance of the payroll run for June, one young payroll clerk noticed that i would only be paid £128 because SAP was going to claw back the repayment in one lump sum.

 

Payroll contacted HR to advise them. As we receive our bonus payment in our June payroll, SAP had calculated that it could claw back the repayment back to July 08. HR had mistakenly thought that I only had to pay back the overpayment from July 08 and advised that I should go into the office first thing Friday morning, sign a repayment plan to spread that payment over a period to make sure that the monthly repayment was affordable to me. They said they would then open SAP for 15 mins the following day to make the changes and hence, I would be paid this month!!

 

When I arrived at HR on Friday morning I was ushered into a side room then the HR lady told me that she had made a mistake, I would need to have a discussion with my manager before signing a repayment plan.

 

So basically, payroll had screwed up my payroll record and HR had proposed an action that they were not authorised to follow up & I'm back to waiting and hoping that we can reach an agreement that is affordable to me.

 

The only thing that has been presented to me so far is a schedule of the overpayments and even that was inaccurate. Even when we reach an agreement I've no faith that the company will apply the repayment plan accurately

[Vindicated]

Get everything you can in writing; i know its quite a private issue regarding the money involved, but id advise any meetings with HR, Manager etc are held with a witness, eg: a friend of yours, co-worker etc.

 

This will mean any verbal agreements have someone other than a company official there to witness anything agreed to when there is no written evidence of the verbal promise etc (such as the company agreeing to 50/50 split)

 

It would also mean another person is witness to HR saying they screwed up basically

[Harrison04]

Cheers Vindicated - will do!

 

I don't know if all HR departments operate like ours but basically they devolve everything down to the line managers therefore I will negotiate the repayment plan with my line manager, not HR. I think this makes it a little awkward as obviously I don't want to upset my new line manager but I believe that the company should write off some of the debt as it was their error that got us here in the first place

 

I'm hoping to meet with my line manager later this week. Both have been very supportive throughout but HR & Payroll have made the process very difficult.

[cankster]

Just a though but when I was under the impression that a company could not just take the money from you. Any repayment plan MUST be with your agreement. Ergo if you will only agree to pay back £5 a month there is little they can do. They cannot force you to repay this money on anything other than your terms. it would however be career sucide to antagonise them too much.

[cankster]

From Here http://www.consumeractiongroup.co.uk/forum/employment-problems/111837-query-about-salary-overpayment.html

 

It is wholly illegal for your employer to make any deduction from your wages which is not either required by law or has been agreed by you.

 

 

So, income tax deductions and national insurance contributions can (and indeed must) be deducted from your wages before you are paid. These are statutory deductions. Deductions ordered by a court, such as maintenance payments or payments for a fine are also legitimate.

Where employers pay a hefty sum of money for training, many of them will require that the employee pay all or part of this sum back if they leave within a certain period of time. Some of these agreements will include a clause allowing the employer to deduct the sum from the final payment made to the employee.

Relatively few employers will include a clause within the employment contract that gives them permission to deduct overpayments but if such a clause is included within the contract then the employer is entitled to take back any overpayment by deducting it from your wages. (Though it could be argued that if the overpayment was their mistake and then the deduction left you short, the employer might be liable for ‘damages’ such as bank charges incurred, etc).

 

 

So, in most cases, employers are not allowed to take money directly from your wages. But can they demand that you give the money back?

Well, this is where common sense and the law part company. Many people would think that the money belongs to the employer and the employee must return it but it’s just not that simple.

First it depends why the overpayment was made – was the overpayment made as a result of a ‘mistake in law’ or a ‘mistake in fact’?

A mistake in law is where the employer incorrectly interprets statutory regulations or legal instruments – no clearer? – well, suppose an employer had to decide whether a particular regulation applied to you, and suppose this regulation regarded whether or not a particular allowance applied to you – so the employer decides that the allowance does apply to you, makes the relevant payment to you, and then later finds out that they were wrong and you shouldn’t have had the money – that’s a mistake in law.

And a mistake in fact? You submit an overtime sheet that says you’ve done 2 hours overtime and someone enters the figure as 20. Simple errors of one kind or another. A mistake in fact.

 

 

If the overpayment is due to a mistake of law then tough – the employer can’t demand their money back. They can ask, and you might decide it is wise to give it back to keep your employer sweet, but they cannot demand you pay it, and if they took you to court they would lose (so long as your solicitor is up on this aspect of the law).

But, if it is a mistake in fact, then the employer may be entitled to demand the money back.

May? Why only ‘may’?

 

 

Ah, well, here’s another thing. Even if the overpayment was due to a mistake in fact the employer cannot recover the money if the following three conditions are met - if the employer has lead the employee to believe the money was theirs (one suspects that the provision of a wage slip including the amount would suffice); if the mistake was primarily not the fault of the employee (so you can’t mislead the employer); and if the employee has subsequently spent the money or used the money to change their lifestyle in some way (e.g. bought a car on HP).

 

 

It is not completely clear cut, however, and, if the sum is large enough and the employer is determined, they may take the matter to court and look for an order demanding that the money is returned. Generally the courts will seek to do what is just in the circumstances. In order to do this the courts will take into consideration the amount of the overpayment, the level of negligence and whether or not the recipient knew or should have known about the overpayment.

These then are the legalities surrounding the matter. In general it is very difficult for an employer to recover an overpayment but there are limits. If an individual who was normally paid £500 per month by an employer – this month, however, they had been paid £50,000 and wanted to know if they could keep it!! It is hard to imagine any court accepting this individual had not realised that they had been overpaid.............

 

 

 

 

Need something to impress your employer? Or even prompt your solicitor? Here’s the case law -

"Mistake of law" : the Court of Appeal in Holt v Markham 1923 1 KB 504.

"Mistake of fact" : County Council of Avon v Howlett (1983 IRLR 171). Bank Charges You should have started your claim for your bank charges by now.

Don't wait.

You should send your bank a Subject Acess Request asking for all personal data they hold on you - not just statements.

You should calculate all of your bank charges and related interest as far back as 1995.

You should send your bank a demand for a refund giving them 7 days.

You should commence your legal action adding 8% statutory interest.

If you wait for the outcome of the test case, you may not be able to claim like this. you may not be able to claim interest. You may only be offered the difference between the charge and the OFT "fair charge".

The repayment scheme will try to limit you to refinds from 2001 only.

A repayment scheme will not deal with any bank charges related defaults on the credit register whereas in a court action you can ask for these to be removed and to be compensated for the damage caused to you and your family by them.

You should also write to the bank and to the CRA and put all charges related credit entries in disupte and warn them that you will want them removed from the Register when the test case is over. Warn them also that you are likely to be seeking compensation for these wrongful data entries.

 

Full and final settlement

 

Have you previously accepted a partial repayment of your bank charges in full settlement?

You will still be able to claim the rest of your money back after the Test case is decided.

Get all your information back to 1995 and put in your claim now.

[Vindicated]

There was some form of agreement originally that 50% was removed from the balance was there not?

 

Or did i mis-read? If they did originally state that, then just say that at the meeting with whoever deals with the payment plan, hopefully they will just agree in good faith and it will be sorted. If they dont, pop back here and i'll guide you further as best i can

[Harrison04]

Thanks Cankster.

 

These are the facts regarding my case:

1. the gross total overpayment is £14,000 which was a monthly overpayment over 20 months

 

2. an investigation revealed that the error was a mistake of fact - i reduced my working hours from 37 hpw to 30 hpw - this adjustment was not applied to my SAP record

 

3. The purpose of the investigation was to determine whether or not i deliberately withheld the money. I was advised that i could be disciplined pending the results of the investigation. I was advised by my manager that the witness statements have been reviewed and no further action will be taken against me. I don't have this in writing but I believe that this finding backs up the fact that i wasn't aware that i was being overpaid although i did not dispute that i had been overpaid.

 

3. The money has been spent on our day to day living expenses.

 

I think that the above points would support my claim that the employer may not be entitled to reclaim the money. However, in a similar case at the same organisation the employer agreed to a 50:50 split with the employee and I have asked for the same consideration. I would be willing to settle for this for the sake of keeping everybody happy and avoiding the hassle of going to tribunal.

 

... I'm now off sick with IBS. This is a very stressful situation and has been going on for months now. Fingers crossed for a resolution asap

[Harrison04]

Thanks Vindicated - the employer has proposed to collect the full overpayment over the same period that the overpayment was made.

 

I have counter-proposed that I repay 50% over the same period that the overpayment was made. I'm waiting for their response.

 

The 'celebration' after they had 'wiped off' the debt arising from the first 12 months overpayment was a red-herring resulting from yet another payroll c*ck up