Help ! Overpayment of salary apparently but paid correctly in respect of contract

[Driftaway]

Hello

Happy New Year to all , i hope i can share this with you guys and maybe get some advice

If I give the time line of events, it may help

 

My wife works in care, for Autistic adults, which has various working locations (Houses for the people in care, staffed by support workers etc, such as my wife) she went onto Maternity Leave April 2009, and the baby was born in May 2009, at that time, for the location my wife worked at, and the full time role she carried out she was paid £18159

 

At a returning to work meeting at our house in December 2009, it was explained by HR and her manager that her previous role could not be fulfilled as a part time employee at that particular location and the company were trying to locate where best to place my wife as a part time employee where it would also suit the business and our childcare arrangements etc..

 

They came up with somewhere else, and were advised the hourly rate was less as the previous place was including car maintenance in the pay etc...

 

My wife returned to work , part time , in Jan 2010 , work sent through a contract in Feb 2010 , but it still stated the PREVIOUS location of work , so my wife sent it back , didn’t sign it and said please send me the correct details etc ....she chased it more than once but never heard anything until August 2010.

 

What was sent through was this, word for word...

 

“Re: changes in hours and salary

 

Please accept my apologies that you did not receive a letter from HR to confirm this change at the time it took place. This letter is to confirm that you have changed your working hours as follows:

 

Job Title: Support Worker

Location: *******

Hours: 16 Hours

New Salary £8, 023, 96 per annum

Effective from 9/11/09

 

All other terms and conditions of employment remain unaltered .Please would you return your copy, duly signed and dated to confirm your acceptance for our records.

 

Signed

 

HR

 

Now , fast forward to last Friday , my wife received a call from HR to say a mistake has been made their end , someone hasn’t altered my wife’s salary when they should have done or something like that, and that her salary , due to her new role etc should have been £6925.39 and as of 1/12/10 it would be adjusted to that , a new contract to sign is in the post , apparently....not only that , but she owes the company £1k in overpaid back pay..during the phone conversation , my wife said to HR , how can you do that , you have just told me it’s a error your end , and dating Aug 2010 I have a updated contract amendment , showing my salary , if you can backdate this apparent overpayment then surely that makes this contract not worth the paper it is written on ? , the HR lady said she was just passing along what she was told to say , so we don’t know their next move , but she did assure , until further discussion , nothing would be take out of her salary...that is how it is now...

 

So now , we are worried sick , firstly we don’t think it’s appropriate that we have a contract stating the pay , that they can just back pedal on and try and scrape back money , surely they should swallow the mistake made at their end and ask my wife to sign the new contract , if she wants , or leave , I guess ?!

 

The thought of any money coming out of her wage of £577 a month for the next gods knows how long, is giving us sleepless nights!

 

We are really convinced that strictly speaking this isn't overpayment of salary. They have paid her salary as detailed in her contract (which was signed by both parties). But they are now saying tht the contract is incorrect. Not quite the same as overpayment of salary wedon't think.

 

After speaking to ACAS we wrote to her employer and stated an offical grievance with the proposal to recoup the apparent overpayment and my wife has been invited to an `informal meeting` to discuss the grievance in relation to an overpayment , one of the arguments from us ,was the view from ACAS that it is under customs and practice guidelines reasonable for an employee to receive a certain amount for an extended period of time , to be entitled to believe the amount payable is correct...

Can any kind soul out there, please give us some advice?

 

 

 

[SarEl]

Morally I agree with you - unfortunately legally I cannot. Errors do happen, and the company have made one. The law is very clear - if they make an error they are allowed in law to correct it, however unfair it may seem. I do think that the best way of dealing with this is outside a court (in other words, amicably if you can) because I do not think you would win in this case. ACAS, as usual, are not really giving you very good advice if they said that. I think that the grievance is the way to go, hopefully persuading them to stand the cost of their error, or if not, to negotiate a compromise amount that is less than the full amount, and more reasonable installments - certainly installments of the amount you suggest are not really reasonable and it would seem that repaying the amount owed (if they won't drop it) over the same period it was overpaid by would, at least, be somewhat more sustainable. In the worst case scenario, most employers would agree to repayment over the same period as the overpayment had lasted for, and that would be significantly less than £577 per month.

[Driftaway]

Hi

 

Thanks for your reply

 

Do you think then , that a contract amendment , signed by both parties , is worthless ? in the eyes of anyone outside looking in ?

 

Have they not paid the salary as per contract ?

[SarEl]

The contract issue is only good in as far as it shows that you did not take the overpayment knowingly (which is worth also pointing out - you had no way of knowing that the pay was wrong so couldn't have told them). But I am afraid that errors, even in the contract, can be corrected, as in this case. It is not as uncommon as to never happen, and the law is clear - if an employer makes such an error they can reclaim the overpayment.

[Driftaway]

Hmmm , ok , what about the fact that if they take too much it would leave her under the minimum wage threshold....?

[SarEl]

Ah - now they cannot take the wage below the minimum wage threshold unless it is final wages. But I would hold back that argument until last. Don't appear as though you are checking the law - it may put backs up. Try reasoned and reasoanble arguments first. Moral obligations are most generally best considered when everyone is being friendly!

[Driftaway]

Thanks

 

I am still struggling with this a bit though , the government website says "A contract of employment is a legally binding agreement between you and your employer. A breach of contract happens when either you or your employer breaks one of the terms. For example, if your employer doesn't pay your wages, or you don't work the agreed hours"

 

So , its legally binding except where the employer made a cock up and can change it at the drop of a hat , whilct also deducting money...?!?

[SarEl]

The problem with potted law is that it never quite gets it right! That's why ACAS make so many mistakes - they read the potted version. The employer has a pay scale / grade that is standard to specific jobs. So everyone that does what your wife does gets paid that. She knew that she was returning to a lower paid job - she should, technically, have checked exactly what the rate was then. But yes, even contracts can contain mistakes and mistakes are not legally binding. You aren't arguing that a mistake hasn't been made - you seem to agree that the mistake was made, but that you shouldn't have to repay because it wasn't your fault. I get that, and I agree it's fair - the problem is that it isn't legal. If a mistake was made then your employer is within their legal rights to reclaim the money. If you wish to switch the grounds to say that there was no mistake - the contractual amount is the correct pay and your wife should not repay it and should continue to get this amount because it is her contracted rate - you are in a whole new ballgame and one which will probably result in your wife loosing her job. Because you are going to have to argue that this is an unlawful deduction of wages, breach of contract, and unfair dismissal. Which means making a tribunal claim. At that point you are on very shaky ground because this was an error and none of the above - but you are also into taking a court case against the employer which may be much more costly in the long run, not least in terms of your wifes continued employment.

 

Unfortunately, mistakes can happen, but you have to decide whether you accept this is a mistake - in which case morally you have a case, but legally you don't - or not.

[Driftaway]

n/t

Edited January 4, 2011 by Driftaway
removed personal info

[SarEl]

Well it's been sent - so my opinion isn't really relevant or helpful. You can't help out - there is no legal right and the employer can refuse to deal with you. The law says trades union member or colleague only (unless of course you work for the same bunch). I love the term "abuse of contract" - who came up with that one out of interest because it doesn't exist! I think I might have gone in a little less "legal" initially and stepped up the pressure if that didn't resolve it - but what is done is done. If they now dig in their heels then you have run out of any options to do anything other than accept it or take legal action - and I don't, on the face of what you have said, hold out any hope of your winning.

 

I would recommend that you delete the entire letter now (it's safer to PM such things) - the letter could in itself identify your wife (and all the advice you have had!) and you don't want anything else rearing its head!

[Driftaway]

abuse of contract was another ACAS offering....

 

Well ,we will see what Thursday brings , our last defence was pleading financial hardship (true) and they are yet to find out my wife is due in august....good god what a mess

[SarEl]

Financial hardship unfortunately only works (in law) when someone doesn't have a job to repay it (and also couldn't have reasonably known they owed the money) so if the rest of the argument doesn't hold up then I doubt that one will do anything other than reduce the installments amount. I suppose getting some overtime in is out of the question? If all else fails it might make it a little easier to repay.

 

Good one that - I am thinking a should collect and publish some of ACAS's "better" comments, but I fear that nobody would believe some of the things that I have come across!

[Driftaway]

the ironic thing is she did countless shifts over the last few months , weekends , nights sleep overs etc , just to get some money in for the baby we have now and the car etc ! now she may have to do it all again , for nothing ! breaks my heart , i hate her employers they have really messed her about from the minute she said she was pregnant the first time , long story

[SarEl]

I am really sorry and understand how frustrated you must be. I wish I could help more, but unfortunately this is a moral issue. Given the circumstances, I know what I would have done - drop her pay but write of the difference from previous months. But I am afraid that the type of employer she works for are not known for their generosity. But we may be surprised yet!

[Driftaway]

Thanks for all your help on this , ill report back after tomorrows meeting , if only for interest reasons !