Employment law question

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Piff

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SWMBO had problems with her employer who is a local authority. Very long story but basically she was accused of something she didn't do and after their internal investigation (Which included much false information) she was sacked. We had taken on a solicitor as her union seemed to be too busy to help. Solicitor said to them that we would appeal their decision via an acas tribunal. They took this to mean that they could hold an internal appeal which we refused to take part in.
11ish weeks later they held their internal appeal meeting and decided that they had go it wrong so they wrote to her requiring her to go back to work and they also sent 3 months back pay, up to the end of that current month.
She had no desire to return to their employment so immediately resigned and the acas case changed to constructive dismissal. She resigned around the middle of the month and there was no mention of a notice period or pay in lieu of notice.
Through the investigation period (total of 16 months) her mental health suffered and was suffering from anxiety & depression. So rather than wait a further approx 6 months for the acas case she accepted a settlement which was probably significantly less than what she would have been awarded if she won at the Tribunal. It was presented to us by our solicitor as "well you have had 3 months pay which you were not expecting so the total of that & the settlement is not too bad..........."

Roll on 19 months and she has received a letter from this local authority advising that as she resigned part way through the month and they had paid her to the end of the month she is required to pay them back the overpayment. They attach an invoice and require payment in 3 weeks time.

So the question is should she pay the money back?
If not, what reasonable arguments can be used to avoid payment?
 
I'm not an expert in this, but did your wife accept the offer on the basis that it was the full and final settlement (I would suspect that she probably would have signed something to that effect bearing in mind the sequence of events). My gut feeling if she did is that her previous employer can go whistle, but my practical advice would be to consult with the solicitor who handled the case for you.
 
1. Did the paycheck make clear what months or period exactly she was being paid for? It would be unusual for an employer to make salary payments in advance.

2. If the full and final settlement did not mention the 3 months pay, then to my mind this should be treated as a separate issue.

I supppse she could argue though that she saw the full final settlement as covering also the lost statuary notice period.

3. My understanding of civil law, is that in her current position if she writes back to her employer saying that she disputes the charge in the invoice, then the Council can not take it any further through debt collection agencies etc but must persue this through the courts and get an injunction against her first. So she might prefer to formally dispute it then do nothing, and see if the Council will initiate court proceedings.

4. There's a small risk that this could turn into a criminal case, because receiving payment or goods that you know you are not entitled to is technically fraud. Said that, the chances that the Council will try and pursue this avenue is very small.

I suggest you raise these points with an employment solicitor.
 
I've had this in the pacst but I was paid a months pay then they decided to take it back, So I chose to pay it back £5 a week.
 
We had the same when they first sacked her. Sacked her in the first week of the month then paid her in full at the end of the same month. A month or two later a letter & invoice requiring repayment of about 3 weeks money. At that time solicitor advised paying it back or they would adjust her settlement offer accordingly.
1. Did the paycheck make clear what months or period exactly she was being paid for? It would be unusual for an employer to make salary payments in advance. We boxed all the info up over a year ago and put it in a cupboard to help her move on with her life. Would have to dig this out but I'm fairly sure it has the period on it - I'll have to check.

2. If the full and final settlement did not mention the 3 months pay, then to my mind this should be treated as a separate issue. Again, boxed away but they should have considered what they had already paid her before offering their final settlement figure??

I supppse she could argue though that she saw the full final settlement as covering also the lost statuary notice period. Certainly assumed that the money she had been paid was hers and had been taken into account in the final settlement. Is it her fault that the local authority employment dept don't communicate with the payroll dept? Is it her fault that they have made errors?

3. My understanding of civil law, is that in her current position if she writes back to her employer saying that she disputes the charge in the invoice, then the Council can not take it any further through debt collection agencies etc but must persue this through the courts and get an injunction against her first. So she might prefer to formally dispute it then do nothing, and see if the Council will initiate court proceedings.

4. There's a small risk that this could turn into a criminal case, because receiving payment or goods that you know you are not entitled to is technically fraud. Said that, the chances that the Council will try and pursue this avenue is very small.

I suggest you raise these points with an employment solicitor.
Will have to research facts first then raise with the solicitor. Its helpful to have your input though as it helps us to put the right questions to the solicitor:thumb:
 
Write back telling them you need to investigate their claim of a refund and that you will be carrying out an internal review of your own and they will be notified in due course. That will cancel their three week repayment demand and allow you 19 months before you are expected to act. Then as c_200K says, make an offer to pay it back (if that’s your findings) at a stupid amount each month.
 
Hiya Piff, my heart goes out to your Wife, bloody appalling that she should be treated like that, it's terribly distressing for both of you, fairly typical of the Civil service and local authorities where a bullying culture predominates. She should reply to them, that the payment was accepted in good faith, and in good faith has been spent, you no longer have it therefore cannot return it. If they persist, using your solicitor, do as C200k suggests. Not satisfactory, but a solution that'll help get your heads right. "Good Faith" is a legal term. P.S. Which union ? they need a smack. Message if you want a chat.
 
Hiya Piff, my heart goes out to your Wife, bloody appalling that she should be treated like that, it's terribly distressing for both of you, fairly typical of the Civil service and local authorities where a bullying culture predominates. She should reply to them, that the payment was accepted in good faith, and in good faith has been spent, you no longer have it therefore cannot return it. If they persist, using your solicitor, do as C200k suggests. Not satisfactory, but a solution that'll help get your heads right. "Good Faith" is a legal term. P.S. Which union ? they need a smack. Message if you want a chat.

Are you a hitman?

Your avatar suggests otherwise.
 
What does her contract of employment say about periods of notice? While the council may normally be obliged to give her notice, she in turn may in turn be obliged to give them notice of her intention to quit which may complicate things? You then enter the territory of PILON[ pay in lieu of notice]which may involve such things as tax, NI and pension contributions. Its a complex area and regulations changed as recently as this year.* Its where you need expert advice from a lawyer who specialises in employment law. Costs may then exceed the money your wife is trying to hold on to. Even if she is within her rights if this continuing saga is going to take a further toll on her health paying up and puting the whole sorry affair behind her may be in her best interests. Some things are more important than money.
*How should payments in lieu of notice be taxed from April 2018? | Brodies Blog
 
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Hiya Piff, my heart goes out to your Wife, bloody appalling that she should be treated like that, it's terribly distressing for both of you, fairly typical of the Civil service and local authorities where a bullying culture predominates. She should reply to them, that the payment was accepted in good faith, and in good faith has been spent, you no longer have it therefore cannot return it. If they persist, using your solicitor, do as C200k suggests. Not satisfactory, but a solution that'll help get your heads right. "Good Faith" is a legal term. P.S. Which union ? they need a smack. Message if you want a chat.
Union was unison. They were ineffective as they had so many similar cases on their hand and had insufficient time to deal with them thoroughly.
 
I'm shocked, always known s a good supportive bunch. Go back to them and make a fuss, paying her subs entitles her to legal support, part of the subs goes to pay a retainer to their solicitors, probably Thompsons. have you got her rep's name ?
 
A friend of ours recently won an employment dispute at the High Court against a VERY large company . Unison didn`t do her much good . She did have legal aid via her Tesco household insurance , which was capped (and spent!) at £100k . Solicitors costs are likely to outweigh the money the council has asked to be repaid. However ,you can a) threaten them with court and imply that you have backing to take it as high as you want , or b) as has been suggested , offer £5 a week/month.
If your wife visited her doctor during the initial 11/12 weeks after the sacking it may be worth asking for a GP`s letter pointing out that she was not fit for work during that period , and had she been in employment , would have been signed off , and qualify for (presumably) full pay for the first 6 months?
As the Council lost the tribunal they may think twice about taking , rather than just threatening, any further action. Good luck with whatever course you choose to follow.
 
I'm shocked, always known s a good supportive bunch. Go back to them and make a fuss, paying her subs entitles her to legal support, part of the subs goes to pay a retainer to their solicitors, probably Thompsons. have you got her rep's name ?

I think the real problem is consolidation of the unions. They are way more corporate than they would like to have their members believe. And in effect without competition these large unions have become lazy and self-serving.

I watched some members go through hell and left unsupported by their union a couple of years ago - they still pay their subs. Maybe if they and others stopped then their union would start to figure it should start doing its job.
 
Firstly, you could argue that what they claim is an "overpayment" formed part of the settlement and/or/if they wish to revisit the case you'd be happy to include a Psychologist report and pursue a claim for damages for mental health - unless that was part of the settlement. Or just pay it off to avoid any further hassle and maybe offer payment at £xyz per month, which given the amount and length of time from the settlement would be seen as reasonable.

Secondly, was any accrued holiday settled and paid?

Personally, I think the way some companies and HR departments treat people is truly shocking. ACAS aren't much help on a good day but you have to deal with them before filing any claim with an Employment Tribunal. Adding ridiculous ET fees of some £1250 certainly didn't help. The 2 year rule is just as daft. Solicitors just want to drag cases out for there eye watering fees and Unions only want to assist in cases that make there win percentage look good.

Either way, I hope you get it resolved enabling you both to close this chapter and swiftly move on to what can only be described as shit experience never to be repeated.
 
I'm shocked, always known s a good supportive bunch. Go back to them and make a fuss, paying her subs entitles her to legal support, part of the subs goes to pay a retainer to their solicitors, probably Thompsons. have you got her rep's name ?
They provided a solicitor for the initial police interview. Solicitor just took notes apparently. Never heard from her again. Union would have attended internal investigation meetings but we had lost faith at that time & appointed a solicitor who was recommended to us.
 
Emailed solicitor last night with the facts and some suggestions from here. He replied (7:20 this morning!!) and suggested sending a simple letter pointing out that their claim is not accepted. She was unfairly dismissed and duly compensated with a full & final settlement and does not intend to reopen the matter.
Solicitor thinks that we will hear no more.
Watch this space................

To answer the other points regarding holiday pay/pay in lieu of notice, etc, she resigned giving no notice. Sums were done to include all those sorts of things to put to ACAS. In the event as her health was suffering she took an early settlement of a lesser figure which was to include all parts of her claim.
Strangely there is a specific clause in her Settlement preventing her from going back for more at a later date, but no reciprocal clause preventing her previous employer from doing the same, other than the fact that it is a full & final settlement
 
Strangely there is a specific clause in her Settlement preventing her from going back for more at a later date, but no reciprocal clause preventing her previous employer from doing the same, other than the fact that it is a full & final settlement

The 'system' is biased against both parties in different ways.

The employee is more vulnerable to being railroaded and bullied - but the employer is typically to vulnerable to actual financial claims and a risk that any initial agreement left unfinalised is used as a wedge to leverage more (or even extort).

This means that even the most reasonable employer will get defensive when it comes to paperwork. It's unusual for an employer to go after an employee after the paperwork is signed - but less unusual for an (ex-)employee to be given further advice and raise some new aspect on which to claim.
 

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