Ex employer requesting overpay of salary + holidays ***Claim Discontinued***

[AndyOrch]

Tues 29th ...33 days from and including the date on the claim.

 

Andy

[notodebt]

Thanks for that Andy. I am away for 3 days from 26th and back the 30th Nov.

 

Can I get some assistance with a defence to submit this week , bearing in mind I am still awaiting the SAR...

[AndyOrch]

Breaking down the particulars of claim .....if you could respond to each line in bullet response.

 

The defendant was employed by the claimant as a ************  under a contract of employment commencing on July 2008 which is subject to English law .

The defendants employment with the claimant ended on Feb 2014.

 

The defendant received an over payment of salary from the claimant amounting to £396.55.

This over payment was due to the defendant exceeding his annual leave entitlement by 16 hours and the defendant was paid for 25 ? 28 Feb 2014 after having left his employment on 24 Feb 2018.

 

The claimant has called upon the defendant to make payment of the sum owed,

however the defendant has refused or delayed to make payment and accordingly this action has been rendered necessary.

 

the claimant claims int under section 69 of the county courts act 1984 at the rate of 8% a year from 1/4/2014 to 26/9/2019 on £396.55 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £0.09 

 

Admit deny or accept and add alternative and then it can be drafted into a CPR compliant response.

 

Andy

[notodebt]

The defendant was employed by the claimant as a ************  under a contract of employment commencing on July 2008 which is subject to English law .

The defendants employment with the claimant ended on Feb 2014.

• The defendant admits being employed from July 2008 to Feb 2014

 

The defendant received an over payment of salary from the claimant amounting to £396.55.

This over payment was due to the defendant exceeding his annual leave entitlement by 16 hours and the defendant was paid for 25 ? 28 Feb 2014 after having left his employment on 24 Feb 2018.

• The defendant admits receiving the payment but denies this is due to over-payment of annual leave . The defendant was on suspended leave for an ongoing dispute during this duration and not annual leave as the claimant is reporting.

 

The claimant has called upon the defendant to make payment of the sum owed,

however the defendant has refused or delayed to make payment and accordingly this action has been rendered necessary.

• The defendant denies refusing or delaying payment and has previously asked the claimant to clarify how they have calculated this payment. The claimant has not provided a breakdown of the requested information

 

the claimant claims int under section 69 of the county courts act 1984 at the rate of 8% a year from 1/4/2014 to 26/9/2019 on £396.55 and also interest at the same rate up to the date of judgement or earlier payment at a daily rate of £0.09 

• The claimants calculation is based on an incorrect sum.

Admit deny or accept and add alternative and then it can be drafted into a CPR compliant response.

 

Let me know how this is ....thanks 

[AndyOrch]

#######Defence########

 

I Mr xxxxxxx the defendant in this claim accordingly sets out the defence below and relies on CPR r 16.5 (3) in relation to any particular allegation to which a specific response has not been made.

1. The Claimant has not complied with paragraph 3 of the PAPDC (Pre Action Protocol) Failed to serve a letter of claim pre claim pursuant to PAPDC changes of the 1st October 2017.It is respectfully requested that the court take this into consideration pursuant to 7.1 PAPDC.

 

2. Paragraph 1 is noted. The defendant admits receiving the payment but denies this is due to over-payment of annual leave . The defendant was on suspended leave for an ongoing dispute during this duration and not annual leave as the claimant pleads.

 

3. Paragraph 2 is noted.The defendant admits receiving the payment but denies this is due to over-payment of annual leave . The defendant was on suspended leave for an ongoing dispute during this duration and not annual leave as the claimant is reporting.

 

4. Paragraph 3 is noted. The defendant denies refusing or delaying payment and has previously asked the claimant to clarify how they have calculated this payment. The claimant has not provided a breakdown of the requested information.

 

5. Paragraph 4 is denied.The claimants calculation is based on an incorrect sum.

 

6. It is therefore denied with regards to the Defendant owing the amount claimed to the Claimant, the Claimant has failed to provide any evidence by way of a  CPR 31.14, request therefore the Claimant is put to strict proof to:-

 

a) Evidence and quantify the amount claimed.

 

7.. As per Civil Procedure Rule 16.5(4), it is expected that the Claimant prove the allegation that the money is owed.

 

8. . By reasons of the facts and matters set out above, it is denied that the Claimant is entitled to the relief claimed

 

[notodebt]

Many thanks Andy for taking the time out to do this.

 

That looks great...

 

 

[notodebt]

So an update...letter from company HR saying that unable to respond to timescale due to the process in place to retrieve my personal information held in various sources across the organisation ( told you they were incompetent)  Steps are in place to retrieve the information however this will require time to retrieve data and give a timescale of Jan 13th 2020.

They then ask if I can specify particular information or processing activity that my request relates to..

 

I don't see why I should be specific at this point , all data may be relevant for a defence , what do people think?

 

I also have form from the court for allocation so please let me know if the following is correct :

Do I agree to small claims mediation  Y 

Do you agree that small claims track is appropriate  Y 

Hearing venue - My local court 

Expert evidence - N

Witnesses - 1 

Fill in the available dates section that I am or not available

Finally serve a copy to the claimant , court and keep one for myself 

 

 

[AndyOrch]

Post moved to correct thread.

 

Andy

[notodebt]

1 hour ago, Andyorch said:

Post moved to correct thread.

 

Andy

Thanks for moving 

[notodebt]

Just a further update...

Defence filed and copies sent to court + claimant. 

 

They have agreed to mediation along with myself but I have marked on the defence form that I do not have all the relevant information which of course I don't as my SAR request has not been satisfied yet.

 

Searching through my emails I have located one dated 2016 where I was communicating  with the legal dept , in the mail they said they were going to take legal action unless I paid the outstanding amount.

 

I told them the situation ( on suspended leave not A/L then resigned) and not to take any action until they confirmed my resignation.

I also asked them for a breakdown of how they got these figures , again nothing was forthcoming. 

 

The follow up email states that they do not have a copy of that resignation letter and they would refer to the HR department.

 

Obviously that never materialised. I am sure I have a copy of that letter along with correspondence with my union rep via email while I was on suspended leave.

 

So in all likelihood they will not produce SAR in time and cannot provide my resignation letter.

[notodebt]

Just a further update!

So far no documentation for SAR request.

 

I have also trawled back through an old BT email account I am still using , found email conversations between myself , HR and union rep.

 

There is mention of my ongoing case with the company, correspondence with HR about coming back to site for follow up interviews and dealings with my rep up to the point I handed in my resignation which was Feb 2014.

 

As far as I can see these conversations prove that I was on suspended leave pending investigation.

Coupled with the fact the SAR if it ever appears will not have these email trails as I suspect my works email account was deleted a long time back. 

 

In terms of the mediation I have already noted that I do not have all the relevant information so this will render any mediation useless which should proceed it to court. 

 

For now I will keep these cards close to my chest and provide those documents at a later date.

 

I feel confident that a judge will throw this out on the grounds of their lack of evidence in the first instance. 

[BazzaS]

If they again ask for more time to locate documents, you can also highlight to the court that THEY have chosen to issue the claim, and THEY should have gathered all the information they need to establish if they have a valid claim before issuing it .......

[notodebt]

Gazza that is an excellent point! Many thanks. 

Bazza even...

[BazzaS]

22 hours ago, notodebt said:

 

 

For now I will keep these cards close to my chest and provide those documents at a later date.

 

Don't leave it too late .....

a) miss a filing deadline & you may not be allowed to introduce the evidence

b) The courts don’t like “ambush tactics”

 

I suggest waiting until they either:

a) provide the SAR response, at which time

i) if that shows you were on suspension (with pay) they should withdraw!, or

ii) if it doesn’t show the paid suspension, highlight that they are missing the email(s) that show it .... again they should back down

b) if they don’t provide the SAR response and a filing deadline is approaching : highlight their lack of SAR response, and provide the evidence : that way you are sure the evidence gets put before the court (if it comes to it!) & you don’t look like you are trying to ambush them!

 

Alternatively, if you just want this “done & dusted” you could consider providing them with the info now, and encouraging them to withdraw “to save everyone time & money”?

[notodebt]

Hmm some really good points. If I remember rightly when it comes to the point of providing documented evidence,  I also have to send copies to the claimant?

[AndyOrch]

Indeed...refer to your Notice of Allocation N157 with the courts directions.

 

Andy

[notodebt]

Well as much as I would like to mediate the court date will be next , seeing as I have ticked the option that i do not have all the information required. I will have to let the court mediation service know this . At least in front of a judge I tried.

[notodebt]

Happy new year to all. Quick update. I missed the mediation timescale so it was heading to court and awaiting a date.

Still no SAR details from employer.

 

Last week a letter in post to say my ex employer had discontinued and alerted the court.

 

This was followed by a court letter later this week to confirm.

So great news.

Many thanks for the advice 

[AndyOrch]

Well done thread title amended

 

Regards

 

Andy

[honeybee13]

That's excellent news, well done.

 

HB