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Employer demanding overpayment back after failing to pay sick pay ***Resolved***


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Hello All,

 

A friend of mine started work for a care home around eleven months ago.

 

From the very start they over paid her and it has just come to light.

 

I do not know for sure if she was aware of the over-payment, (she is cunning enough to be aware and dizzy enough to not notice!, with apologies to feminist readers!!).

 

The company has now demanded she repay the over-payment.  I am not clear what the sums are but she was contracted for around 20 hours a week and was paid for thirty so I would estimate 40 hours x minimum wage x 11 months so something like £3500.  (Please don't comment that this was a huge number that she should have noticed, I already know!).

 

At first they told her she could not leave until she had paid it back, finally an arrangement was made that she will repay at the rate of £50 per month and must settle the balance if she leaves before she has paid it back and they have made her sign a contract to that effect.

 

I take the view that whether or not she has an obligation to pay it back there should not be any contract that in effect ties her to the place.  She should be free to give notice and work elsewhere, any repayment should be at a rate she can afford and if she has a better job offer she should be able to take it without having to wait to pay back the overpay.

 

I would be most grateful for any CAG'ers opinions and comments on this matter and what her rights and obligations are. 

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Please follow the link and read on this forum about estoppel.

If she has received the payment completely in good faith – meaning that not only did she accept the fact that the payment was made properly and with authority, but also she had no reason to suspect that there was an error, then she will be entitled to say that they were estopped from recovering the payment – assuming that she no longer had the money and she had not used it to improve her lifestyle beyond what was normal for her.

From the sounds of it, she may not be entitled to rely upon the doctrine of estoppel. You say that she was working 20 hours and she received 30 hours – which is a very substantial overpayment. She would have to persuade a court that she really had no way of suspecting that the money she was receiving had been paid to her in error.

The courts apply very high standards if people try to rely on the doctrine of estoppel by way of a defence.

In terms of them refusing to allow her to leave, they have no right to do this. It's complete nonsense – although they may well decide to hang on to any payment which is owing to her including holiday pay et cetera and she would find it very difficult to deal with this.

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Just to add, I completely agree with you that a contract to prevent her leaving the employment would be completely unenforceable. However she probably should realise that the situation may be referred to in any references provided to her for a future job.

Who is the employer? Their approach to this problem – which of course has been of their own making, is frankly bullying and unacceptable.

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Thank you for your response BankFodder.

 

First of all her employer is a care home and she is a Part Time Carer.  I do not know what the company is called but would prefer not to publish it here even if I knew.

 

Having read through the link you provided I would tend to agree with your opinion regarding the Estoppel standard of proof especially as she is getting 50% more than she should of been expecting.  Having said that she has had this from the very start and knowing her as I do it is possible she thought this was her monthly wages! 

 

In her everyday life she goes from hand to mouth so there is no improvement in lifestyle unless you consider her absence from Foodbanks an improvement!

 

I think the solution is for her to repay at the low figure that seems to be in place but to disregard the contract requiring her to pay it back before or on leaving.  Should she give notice and work four weeks how can we stop them from witholding her last months wages?

 

 

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they cant force her to stay but they can deduct the money from her last salary run and then bill her for the rest that is still owed.

If she leaves the problem becomes theirs rather than hers because f she offers to pay 325 a month there is nothing they can do other than try adn sue for the entire amount and risk getting an order for worse payment terms from the court

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  • 6 months later...

Hello All

 

This thread is a continuation of this one:

 

 

The situation has now deteriorated.

 

In summary

 

The lady in question was working in a care home as a carer and from the very start they overpaid her.

 

When this came to light they insisted she re-pay the over-payment and apparently this was discussed in public so that her colleagues became aware of the situation!

 

She began to repay at the rate of £50 per month.

 

As time went on the Covid situation got a lot worse and the home began to receive patients suspected of being Covid carriers.  On one occasion the lady had gloves on to receive a patient from an ambulance and was told to remove them (I have no idea why!).

 

The lady became increasingly anxious about the situation in the home, her own health and that of her son and began to lose sleep and experience anxiety issues.

 

She took some sick leave and ran into problems getting sick notes and so the company refused to pay her sick leave.

 

Eventually she left what seemed to be a very bad environment in which she was unable to cope and predictably the company did not pay her the remaining pay or sick pay.

 

After leaving she started to feel much better and has now lined up another job.

 

She has received a letter dated 8th June demanding repayment of the overpaid wages.  Unless this is done within seven days (so 15th June) they will take legal action to recover them.  The letter says that but whether or not they do so remains to be seen.   It seems that as this is in effect a letter before action that some sort of reply is warranted.

 

The lady does some cleaning for a solicitor who has advised her to send a one page letter which she has composed and the text is as follows:

 

_________

 

I am not intending to repay you anything as you have breached the circumstances of your employer’s duties towards me.

 

Namely:

 

  1.  

Quote

 

  1. Setting me up with the wrong contract that I knew nothing about for at least 8 months.

  2. Demanding overpayment publicly in the company reception and office, as a result the whole company being aware of my private matter.

  3. Not keeping me safe whilst working in a risky environment during the pandemic, refusing to give out PPE, such as masks and aprons, when they were already available.

  4. Demanding I do not protect myself, wearing my own PPE, whilst not offering me an alternative.

  5. Demanding I remove my own protective gloves moving a resident in his wheelchair and with his belongings, who just came from hospital with a coronavirus, escorted by ambulance drivers in their full PPE.

  6. Breaking government instruction during pandemic, putting residents and staff at risk, still allowing some residents visitors, even during a clear government ban. This resident who was allowed visitors now sadly passed away.

  7. Not providing any additional PPE, other than a T shirt to protect myself from the coronavirus during lockdown.

  8. Ignoring my complaint about all this and subsequently allowing coronavirus get into the care home.

  9. Ignoring my sickness notes, that I had a great difficulty obtaining, whilst suffering from migraines, when I explained doctor’s surgery do not operate over the Easter weekend, hence the gap in my sickness note, it got simply ignored and dismissed.

  10. My resignation and complaint was altogether ignored and a my sick pay for 2 weeks not paid.

  11. This caused me further unnecessary stress of not being able to pay my rent and borrowing money.

  12. As a result of this I am still unemployed and not intending to get back to work until my mental health issues are improved.

_________

 

 

 

I would be most grateful if CAG'ers could comment on the next steps.

 

The outcome we want is for her to just leave the whole mess behind and move on with her life.  She does not want to pay back the over-payment and neither does she wish to pursue the company for constructive dismissal or any other employment infringements though I believe she would have a very good case given that shortly after she left the care home came down with thirteen Covid cases so she was right to protect herself and they were wrong to prevent her from doing so and therefore forced her to work in an unsafe environment.

 

I would ideally like to construct a letter that points out the wrong doings of the firm and the consequences to them if the lady decides to go to an employment tribunal or take some other form of counterclaim.  The letter she has written as above I feel does not have enough bite and I would welcome any comments or suggestions as to how to beef it up, perhaps by reference to actual laws for example.

 

Any other advice, suggestions or even just opinions and comments are welcome as they always are on my threads.

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Topics merged ...please do not start new topics on the same issue.

 

Andy

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There are two separate matters here. One is the overpayment – and I have already directed you to read up about estoppel. What worries me is that you have suggested that she is cunning enough to have realised – and if they sue her and the court accepts that she probably did know and didn't act in good faith then they would probably order the repayment.

I see that you said that the figure is about £3500. That's probably enough to prompt the company to take action.

The second matter is the matter of the missing sick pay – but also the way that she was treated and whether she has an action for constructive dismissal – but you haven't told us anything about the date on which she left because there is a limited amount of time to bring an action for constructive dismissal.

 

What is the value of the missing sick pay? Also how long will see working there for?

I hear what you say that she just wants a quiet life and wants to move on – but on the basis that they will bring an action for the £3500, she will have no option either to put their hands up – or to defend and then to start looking at her job situation, the sick pay situation and the possibility of constructive dismissal – if we knew the date that she had left.

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Can she not just offer to pay back at £50 per month as she was before or am I missing a detail? £50 PCM is most likely what she will be ordered to pay if she loses in court anyway.

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Bankfodder:

 

Not sure how much the over payment was but believe it to be around £100 per week over 18 months! making it around £7.5K but will have to come back to you on that.

 

She left 3rd March.

 

Yes I agree they are separate issues.   I am just wondering if it is possible to offer the threat of one to get rid of the other.   She just wants to move on and not be enmeshed with dealing with them.

 

London 1971:

 

She was paying it back at  £50 per month prior to when she left.  I don't know what the balance owing is.   The letter she has received says that if she cant pay in one lump then contact them to sort out a plan.

 

Thanks both for response. 

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Hello All

 

Update:

 

It turns out she left on 3rd April so she has until the end of June to start any unfair or constructive dismissal claim.  Not sure how that would go as she was not there two years but anyway I have written the following letter for her and I will fire it off and see how it goes. The intention is to get the management to realise that if they pursue their claim they will be in for a long haul with other issues along the way but if they "wipe their mouths" then so will we.  Not sure how well it will go but it is the only shot I can come up with and I think it is worth a try:

 

____________________

 

Dear Sirs

 

Further to your letter of 8th June I deny that any money is due to your firm and I will be relying on the Principle of Estoppel should you wish to seek a court order.

 

I will ask that the Court recognize that;

 

a). You have lead me to believe that the money was correct and due which you did by repeatedly paying it and evidencing that fact in a payslip over some eight months.

 

b). That the overpayment was not my fault which is clearly evident and

 

c). The money has been spent in order to change my lifestyle to the extent that I relied upon it for a steady income rather than going hand to mouth as I had done in previous employment and used it to settle outstanding debts.

 

You will have to wait some months for the case to come to court and convince a judge that the above are not true in order to succeed.

 

I had hoped to move on from the toxic experience of working for your firm, and in particular having sought advice about how I was treated it was clear that a case for Constructive dismissal was (and is currently) possible, though I decided it was better to just move on. But as you seem intent on pursuing the above I must now consider your treatment of me which includes the following:

 

1. Setting me up with the wrong contract that I knew nothing about for at least 8 months, so my diligent filling in of the actual time sheet made absolutely no difference in hindsight.

 

2. Demanding overpayment publicly in the company reception and office, as a result the whole company being aware of my private matter, extremely unpleasant pressure put on me at the time.

 

3. Not keeping me safe whilst working in a risky environment during the pandemic, refusing to give out PPE, such as masks and aprons, when they were already available,  a Clear breach of the Health and Safety at work Act.

 

4. Demanding I do not protect myself, wearing my own PPE, whilst not offering me an alternative, I was at this point suffering extreme eczema on hands, aggravated by increased washing and severe stress at work being treated disrespectfully on many occasions.

 

5. Habitually being understaffed and more demands put on staff, eg. people must be ready and out of bed by 10.30 am, which is unrealistic, plus furthermore their choice, breakfast must be ordered by 9.30 am, again low staff levels did not allow for that to happen etc.

 

6. Demanding I remove my own protective gloves moving a new resident in his wheelchair and with his belongings, who just came from hospital with a coronavirus, escorted by ambulance drivers in their full PPE. Later on it was found out this is the main route Covid got into care homes.

 

7. Breaking clear government instruction during pandemic, putting residents and staff at risk, still allowing some residents visitors, even during a clear government ban. This resident who was allowed visitors now sadly passed away, so this should be investigated.

 

8. Not providing any additional PPE, other than a T shirt to protect myself from the coronavirus during lockdown. So I do not claim I am a scientist but everyone knows how Covid 19 spreads and how important it is to be wearing effective PPE.

 

9. Ignoring my complaint about all this and subsequently allowing coronavirus into the care home. Also ignoring several complaints that some colleagues were getting away with not contributing to the work and it becomes too stressful for other staff to cope, eg myself.

 

10. Ignoring my sickness notes, that I had a great difficulty obtaining, whilst suffering from migraines at the time, when I explained doctor’s surgery did not operate over the Easter weekend, hence the gap in my sickness note, it got simply ignored and dismissed.

 

11. My resignation and complaint was altogether ignored and my sick pay for 2 weeks was not paid, so effectively I have been fired.

 

12. I am still unemployed and not intending to get back to work until my mental health issues are improved.

 

13. Finally, not allowing me to go on holiday, even though this was requested minimum of 3 months in advance, only a few days out of my requested week were usually approved. I was expected to do the manager a favour and work extra hours, which was not something I could or wanted to do very often.

 

The above are sufficient grounds to bring a case against you at an Employment Tribunal. I had decided to in effect “wipe my mouth” and move on from your firm but as long as you threaten me with court action I have no option but to respond in kind.

 

I have until the end of June to start a case against your firm.

 

I do understand that your firm has faced major management challenges this year and it has not been easy for you either.  Therefore, if you advise me, in writing, by Friday June 19th 2020 at 1700 hrs that you are prepared to withdraw your claim then I will in turn offer a similar undertaking not to commence a tribunal case against you and both parties can move on.

 

I cannot allow you any more time after this date as I must commence my case before three months have elapsed.

______________________

 

 

 

Edited by comebackjimmy
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these are breaches of confidentiality, common contract law and breaches of the HASAWA which should be sent to the HSE.  The first 2 sets may be actionable but not at an ET

Having less than 2 years service makes an ET claim dud unless the claim is for discrimination against someone with protected characteristics like race, disability etc

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At the time, were every one of those points raised in grievances? If not it'll likely be dismissed right away as vexatious retaliation. She was happy to go  quietly before the money became an issue.

 

Cut it down to whatever she actually raised formally during her employment. Right now you have a long, unactionable ramble.

Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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I am happy to report that the company has decided not to pursue their claim.  Here are the main details:

 

I sent the letter in post 11 above (but I thank ericsbrother and Emmzzi for their comments that were added after I had already posted).

 

On the day of the deadline my friend received a letter stating that they were not proceeding with their claim.

 

In about nine paragraphs they said; the over-payment was a self evident innocent error by the company, Promissory Estoppel was irrelevant, disputed her claims and pointed out they were only raised once they tried to get the payment from her.  That said they were exercising discretion in not pursuing sums legitimately owed on the basis that the parties not make claims against each other as per the letter I sent.

 

I am pleased that my letter worked even though legally it was on infirm ground but I think the company realised they were going to have to put a lot of management time into this and were unlikely to get a quick return, and I suspect they were also anxious that some of their practices did not come to light.

 

Whilst I am pleased I also have a nagging guilt because I have some sympathy for the care home (and all care homes) as they have borne the brunt of the Covid outbreak and it has not been at all easy for them to deal with it or their staff.

 

Anyway, my thanks to CAGers for their input.  This thread can now be closed as no further help is required but can of course be open for comments.

 

Donation Friday (Payday). 

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:yo:   Well done...topic title updated.

 

Andy

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  • Andyorch changed the title to Employer demanding overpayment back after failing to pay sick pay ***Resolved***
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