overpayment of salary

[miff]

My daughter was given notice to leave her employment after 3 months' trial and was asked to repay �250 which the employers claim they overpaid her in error. She received a letter from them recently asking her to pay this sum to them. She was unaware of it being an overpayment at the time of leaving. She has now spent that money and can't see any way she can repay it as she is still unemployed. I would like to know if they have any legal right to enforce this. Can anyone give information on this please? Thanks.

[dot.hawkes]

is that perhaps in holiday pay she ended up not qualifying for , is it �250 before tax and insurance? how have they arrived at that figure? At NMW it is around a full weeks wage, did they perhaps pay her for her first week of work and it meant her final pay was for a week after she had left?

[bednobs]

you dont make it clear whether they have actually overpaid her or not? you say she was "unaware" but that dosent mean they are wrong. Is it not possible for her to work it out based on her salary or hourly rate totted against howmany hours/days she worked.
Anyway, if they have overpaid her, of course they can ask for it back - she could negotiate with them as to how long over. There was a poster on here not long ago who found himself with a ccj where the employer had taken him to court for ignoring them when they asked for an over payment back - he now has a ccj on his credit record and will undoubtedly find it difficult to get credit in the future

[dot.hawkes]

oh and if she was given notice AFTER 3 months trial then they are at fault, it's hard enough under the legislation to get rid of someone within the 3 month trial, let alone after it is complete!!!! What reason was she given, if i tried to sack someone at work even on the 3 months i couldnl;t, all employees have rights

[bednobs]

http://www.theanswerbank.co.uk/Jobs-and-Educat ion/Question700932.html

and dot - is that really tue? what if they are crap at their job? Can't you just give them notice?

[dot.hawkes]

Nope bednobs, we have to offer mentoring and re-training. It used to be a 3 month trial but now there is no such thing apparently

[miff]

I didn't actually see the letter from the employers to her and am unaware of the exact details. I know that the overpayment wasn't holiday pay. Your comments are enlightning and I will endeavour to get more information from her.Thanks very much.

[Buenchico]

Most of the posts so far seem to have dealt with the termination of the contract, rather than the overpayment. With certain exceptions (which don't seem to be relevant here), 'unfair dismissal' only applies to people who've been employed for at least 12 months. Apart from the limited exceptions I've referred to, an employer is free to dismiss any employee, for any reason (or even in the complete absence of a reason), within the first year of employment.

With regard to the overpayment (assuming it to be genuine), your daughter should make it clear that she's not simply refusing to repay the money. Deliberately 'hanging onto' money paid in error is a criminal offence under the provisions of the Theft Act 1968. As long as your daughter makes it clear that she can't repay the money immediately (rather than simply refusing to do so) the matter falls solely within civil law, rather than criminal law.

That means that she's in exactly the same position as the hundreds of thousands of people who can't meet their credit card payments. She should offer to pay a nominal amount (of, say, a pound or two) each week. The former employer can choose to either accept the offer or to pursue the matter through the courts. If they do so, all that will happen is that a County Court Judgement will be granted, requiring your daughter to repay the money at an affordable level (which will probably still only be a pound or two each week anyway).

Chris

[Ethel]

dot - that may be the case at the company you work for, but it isn't the law. You need to have worked for a company for 12 months to bring a case of unfair dismissal.

Within that 12 month period an employee can be dismissed for any reason, provided it is not discrimination.

[factor-fiction]

Buenchico's answer is 'spot on'.

The amount of �250 may be after tax and NI so maybe it's only around �200.

And you may find that as your daughter has not worked a full tax year she may have overpaid tax and can therefore claim a refund from HMRC. This may give her some money with which to repay the employer.

It could also be worth writing asking for a full breakdown of the overpayment showing dates, hours, amounts (say her solicitor/adviser needs it) and pointing out that if it can be shown there was an overpayment she will pay it back over a 12 month period via a standing order. The employer may decide it's not worth the trouble and may write it off or going along with her.

[miff]

thanks for all the information. It has been very helpful. I'm still not sure of the details as the letter from the employer is at my daughter's flat from which she had to leave on a temporary basis (that is another problem as she is undergoing maritial problems due to being married to a foreign national who is currently undergoing immigration/residency/citizenship problems which forbid her to find employment without her passport which had to be handed in to aid her husband's residency application). I feel that I am getting a little closer to solving the problem as I realize the next step is to get the letter from her flat (she is living in my home at present). You have given food for thought. Thanks again.