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Any employment law specialists on NSC able to answer this ?



Binney on acid

Well-known member
NSC Patreon
Nov 30, 2003
2,479
Shoreham
My partner has been working part time for a doctor's practice for 16 years and it has recently come to light that they've made some errors with her salary. The most serious of which is paying her 1 hour a week too much. That equates to between £5000 - £6000. She's never checked it and assumed that they were paying her the correct salary.

Where does she stand legally with regards to the overpayment? I suggested that she offers to pay it back at £100 per month over 5 years, but she wants to pay it in one hit, which she can't afford financially. Can she legally make them a compromise offer of say £4k. She is being penalised for someone else's ineptitude.

Is the onus on the employer to get it right, or the employee to check that the employer hasn't screwed up ?
 


Westdene Seagull

aka Cap'n Carl Firecrotch
NSC Patreon
Oct 27, 2003
20,938
The arse end of Hangleton


cheshunt seagull

Well-known member
Jul 5, 2003
2,486
The same happened recently where I work and the employee was required to pay it all back, and the amount was much more. However the employer was required to agree a repayment schedule that would minimise the hardship as part of their duty of care.
 


Goldstone1976

We Got Calde in!!
Helpful Moderator
NSC Patreon
Apr 30, 2013
13,763
Herts
My partner has been working part time for a doctor's practice for 16 years and it has recently come to light that they've made some errors with her salary. The most serious of which is paying her 1 hour a week too much. That equates to between £5000 - £6000. She's never checked it and assumed that they were paying her the correct salary.

Where does she stand legally with regards to the overpayment? I suggested that she offers to pay it back at £100 per month over 5 years, but she wants to pay it in one hit, which she can't afford financially. Can she legally make them a compromise offer of say £4k. She is being penalised for someone else's ineptitude.

Is the onus on the employer to get it right, or the employee to check that the employer hasn't screwed up ?

Depending on the terms of her employment, she is most likely obligated to pay back any overpayment she has received, in just the same way as they would be obliged to pay her any shortfall. However, it's a civil situation, not criminal, so she can most certainly counter offer and try to reduce the total she is expected to pay back as well as negotiate a (lengthy) period of time over which she does pay it back. Assuming that she is held in good regard by her employer (which she presumably is, otherwise why do they still employ her after 16 years?!), I'd have thought that paying back 50-70% of the overpayment over 3 years or so is an entirely reasonable position to adopt. It's all about negotiation though. If they want to stick by the law, they could insist on 100% repayment, but that would, imo, be churlish, petty and not conducive to good employee relations.
 


Official Old Man

Uckfield Seagull
Aug 27, 2011
8,485
Brighton
I'm not going to tell you the answer but to say my staff have contracts written by a professional company and my staff would have to pay it back. Of course it would be over a time scale suitable to the staff member.
NOTE Make sure it is deducted from wages officially so that her tax is not affected rather than just giving back cash each week.
 




Goldstone1976

We Got Calde in!!
Helpful Moderator
NSC Patreon
Apr 30, 2013
13,763
Herts
I'm not going to tell you the answer but to say my staff have contracts written by a professional company and my staff would have to pay it back. Of course it would be over a time scale suitable to the staff member.
NOTE Make sure it is deducted from wages officially so that her tax is not affected rather than just giving back cash each week.

All my companies have similar contracts. However, if she owes £5k built up of a series of 1 hour/week overpayments, then, imo, the employer has a moral obligation to acknowledge their cock up. After all, if she's paid £10/hour and the debt is £5k after tax, then the employer has been over paying her for 11+ years!

Honestly, I'd be writing off any overpayment of longer than a year, since I'd consider it anything longer than a year as largely my fault. I'd look to capitalise on the goodwill, ensure I didn't over pay any more and bollock the payroll people (internal and/or external), but that's it.
 


The wages act legislated for these circumstances and it was later absorbed into one of the employment acts - search it online. There will be a lot of case law on this issue. Assuming she is not a union member I would recommend she speaks to ACAS or to the employment specialist at Citizens advice. The general advice that she has to pay the money back but by agreement at a reasonable rate is correct.
 


happypig

Staring at the rude boys
May 23, 2009
7,934
Eastbourne
I'd suggest a fair rate of repayment is equal to the rate of overpayment, ie about 1 hour's pay per week. If the employer complains that it will take 16 years to repay it, I'd counter with "well it took you that long to notice it"
 




Tarpon

Well-known member
Sep 12, 2013
3,785
BN1
Part of any reasonable employers consideration in such a case should be how credible it is that the overpayment was not obvious and that the employee accepted (and has spent) the payment in good faith etc.

Factors such as how clear the payslip is, what proportion the one hour represents of her total hours, variations to hours during the preceding period and how long the overpayment has gone on for etc should be considered. You mention that there are other pay errors - did these complicate the picture further for the employee and make the employer more culpable? In addition, any sensible employer would consider how much reclaiming the 'overpayment' may cost in goodwill etc (and if the employee regularly undertakes additional unpaid work or work above their pay grade etc).

The employee can make a legal defence on the good faith argument and any hardship caused by repayment could be seen as relevant too. In addition in this case I don't think it is reasonable for the employer to expect overpayments to be sought going back the full sixteen years - there should be some acknowledgement of error on their part and the passage of time (assuming it is credible that that the employee did not notice either).

I'm no specialist but would be surprised if you potentially did not have a decent case to significantly reduce any repayment or have it written off.
 


Gazwag

5 millionth post poster
Mar 4, 2004
30,093
Bexhill-on-Sea
Whatever you do make sure they calculate it correctly as her take home overpayment would be less than her gross overpayment. Also tax rates and ni rates have changed over the years. Does seem a bit harsh, they should sack their bookkeeper and claim it from them.
 


Feb 23, 2009
22,836
Brighton factually.....
My partner has been working part time for a doctor's practice for 16 years and it has recently come to light that they've made some errors with her salary. The most serious of which is paying her 1 hour a week too much. That equates to between £5000 - £6000. She's never checked it and assumed that they were paying her the correct salary.

Where does she stand legally with regards to the overpayment? I suggested that she offers to pay it back at £100 per month over 5 years, but she wants to pay it in one hit, which she can't afford financially. Can she legally make them a compromise offer of say £4k. She is being penalised for someone else's ineptitude.

Is the onus on the employer to get it right, or the employee to check that the employer hasn't screwed up ?


This sounds very odd, how can they be sure they have overpaid her for the full sixteen years for an hour extra a week. They can't possibly still have records.If I were you I would double check just who is asking for the money like an official letter and proof as this sounds to me like someone is trying it on. Are they or the person asking for it in trouble, do they need money, either that or your wife is scamming you and gonna run off with 5k and the doctor!!
 




Shropshire Seagull

Well-known member
Nov 5, 2004
8,477
Telford
Is there an option to work it off?

If she can work an extra hour a week and not get paid for it, or work same hours but get paid for one hour less, until the error is settled?
This approach will avert PAYE and NI complications.
 




drew

Drew
Oct 3, 2006
23,007
Burgess Hill
Your wife seems willing to retain good relations with her employer but it would seem strange to be willing to pay back the whole amount in one go and cause herself financial hardship. Does she only work her require hours or does she always work the extra hour here and there. Might not negate the whole amount but could amicably reduce the amount she has to repay.
 




martin tyler

Well-known member
Jan 25, 2013
5,826
If you refuse to come to an arrangement your employer has two courses of action. It could take you to court for a judge to decide how much, if any, of the money you should repay. Or it could make deductions from your salary.
A judge will look at whether your position has so changed that the injustice of requiring you to make restitution is greater than the injustice to your employer of not ordering it. All sorts of issues would be considered such as whether you have the money, if not what you've done with it, how much effort you put into reporting the overpayment, should you have put more effort into that, the absence of payslips, the amount of repayments the employer is willing to accept over what period and how much difficulty that would cause you. You might be made to repay some, all or none of the money.
In most cases, an employer can only lawfully make a deduction from an employee's pay if the deduction is required to be made by law such as tax and National Insurance, the deduction is allowed for by your contract (eg pension contributions), or you have agreed to it in writing before it's deducted. However, if there has been a genuine overpayment of your wages, your employer doesn't need your consent to recover the money. It can make deductions without your agreement. You might decide to take a case against it at an employment tribunal. Neither of these is likely to result in a good future working relationship. Talk it over with an adviser who specialises in employment law. Check for a law centre at www.lawcentres.org.uk. Most of them have employment experts who offer free advice. And maybe your boss doesn't know that all employees are entitled to an individual written payslip, at or before the time they are paid.
 


e77

Well-known member
May 23, 2004
7,267
Worthing
I don't know the answer to this, but is anything over 7 years statute barred?
 


wellquickwoody

Many More Voting Years
NSC Patreon
Aug 10, 2007
13,583
Melbourne
All my companies have similar contracts. However, if she owes £5k built up of a series of 1 hour/week overpayments, then, imo, the employer has a moral obligation to acknowledge their cock up. After all, if she's paid £10/hour and the debt is £5k after tax, then the employer has been over paying her for 11+ years!

Honestly, I'd be writing off any overpayment of longer than a year, since I'd consider it anything longer than a year as largely my fault. I'd look to capitalise on the goodwill, ensure I didn't over pay any more and bollock the payroll people (internal and/or external), but that's it.

Seems a very fair position to aim for. Alternatively perhaps she should offer to repay over a similar period as the original errors, maybe 16 years?
 


Feb 23, 2009
22,836
Brighton factually.....
My partner has been working part time for a doctor's practice for 16 years and it has recently come to light that they've made some errors with her salary. The most serious of which is paying her 1 hour a week too much. That equates to between £5000 - £6000. She's never checked it and assumed that they were paying her the correct salary.

Where does she stand legally with regards to the overpayment? I suggested that she offers to pay it back at £100 per month over 5 years, but she wants to pay it in one hit, which she can't afford financially. Can she legally make them a compromise offer of say £4k. She is being penalised for someone else's ineptitude.

Is the onus on the employer to get it right, or the employee to check that the employer hasn't screwed up ?

So lets say they overpaid by £5500.00 16 years 52 weeks = 832 weeks = an average of £6.61 over payment a week.

Where a large overpayment is discovered, it is advisable for the employer to discuss this with the employee and try to agree a programme of repayment over a period of time (there is no set time period).
If you cannot come to an arrangement about repaying your employer you could use your internal grievance procedure to try to resolve the matter. You could also choose to sue your employer in a Civil Court if you felt they were being unfair and unreasonable to recover the repayment. Your defence would be that you were led to believe that there was an entitlement to the money, it was not your fault, and that, in good faith, you have “changed [your] position” in reliance on the money. This usually means that you have spent it!
However, if you cannot come to an arrangement to repay the money the employer also can take you to a Civil Court to recover the money. Clearly at this point the employment relationship between you will have broken down though!
In both cases the Judge will consider whether the ‘injustice’ of requiring you to repay the money is greater then the ‘injustice’ to your Employer of not receiving it. They will also consider what you have done with the money and how much effort you may have made to report the overpayment, whether you received payslips (legally it is one of your employment rights that you should receive an itemised payslip). They may ask you to repay some, all or none of the money and will look at the repayment requirements your employer has and how easily you could achieve that.
In some cases it might be practical for the employer to consider writing off part of the overpayment rather than become involved in legal proceedings to recover the full amount.

from http://www.crunch.co.uk/freelancer-advice/2012/06/25/ive-been-overpaid-what-should-i-do/
 




skipper734

Registered ruffian
Aug 9, 2008
9,189
Curdridge
There's been no review. no pay increase, no oversight of the way in which the practice pays it's Partners and Staff for sixteen years? Over this period there has been at least two changes in the way the Practice receives its money from the NHS. So presumable it was found by the newly created and employed,( in the last two years) Management Team.
Sounds like negligence on the Practices part, offer them up to, the last twelve months " overpayment." If you feel morally obligated, I wouldn't and I would be looking for a better employer.
 


BigGully

Well-known member
Sep 8, 2006
7,139
Starting point would not to offer information confirming you have access to or that you are committed to accessing the £5000 +, claiming you do not have that sort of money should dampen their current efforts and perhaps keep some goodwill within your working relationship and give you time to collate more information.

I am guessing there are many examples of this and how this should be played out, I would relax and get some good FREE advice.
 



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