Alleged wages overpayment from 2019 being chased.

[NomoneyNohoney]

I'd appreciate readers' thoughts on the following situation.
My wife worked for a company from mid February 2019 to early March 2019. Her daily rate was about £66.00 per day.
Her journey to work necessitated two buses, with usually no more than 15 mins between them, and same again for her return journey.

Due to Tfl fare capping and hopper fares , that meant two bus journeys in one hour, would be charged as one "hopper fare" and capped at £1.50 for those two journeys. Thus 2 buses to work within one hour cost £1.50, and same for her return journey, a daily charge of £3.00.

The company claim after she left, that she had been overpaid by approx £400.00. It was claimed she had not worked on 6 specific days in February leading to the overpayment, but was due one day's pay for March. This resulted in approximately £400 paid, less one day earned, leaving an outstanding amount of approx £ 334, which needed to be repaid.

We protested that she had worked those missing days. Later in correspondence, they specified the dates that they claimed she hadn't worked, a total of six days.
Looking at our bank statements, they clearly show bus charges:
Weds £3.00
Thurs £1.50
Friday ------
Mon -----
Tues £3.00
Weds £3.00

This shows me that she worked three full days out of six, and on the Thursday I picked her up from work. The Friday and Monday she might have been ill but after all this time we can't remember.

My conclusion is, we have what seems to me reasonable evidence that she did travel to and from work on three of the days they say she was absent, with a fourth one-way journey.

Bringing this up to date, after a year's silence from the company, they have finally written again, claiming a repayment of the alleged overcharge of 6 days unworked, They have given us 7 days to return the money, or to agree a repayment plan, "to prevent our debt collection services being instructed, which may result in additional charges."

What do readers think of our chances? If they took us to a small claims court, then I'd show bank statements, but they don't prove the bus journeys were to and from their premises, despite them stopping after her employment ended.
Could they instruct debt collectors without getting a court's adjudication first?

Would appreciate comments on whether its likely, that we could expect the bank statements showing the bus journey payments to be strong enough,
Should we go all out and continue to refuse reimbursement, or, as our records leave two days with no transport charges showing, would we be best to offer to pay those two days, in full and final settlement?

Ladies and gentlemen, let me know where you'd place your bets.

[richlist]

I'd view the matter as a bit of fun and enjoy playing games with them. I'd probably write telling them that you have evidence that she did work during the dates disputed and as a result don't agree to pay them. Surely the onus is on them to prove they are entitled to be reimbursed.

[Lootman]

Could they instruct debt collectors without getting a court's adjudication first?

I believe that anyone can hire a debt collector for any alleged debt. No court order is needed.

However, you should prevail if the creditor cannot prove that the debt is valid.

Should we go all out and continue to refuse reimbursement, or, as our records leave two days with no transport charges showing, would we be best to offer to pay those two days, in full and final settlement?

The strategy of offering a part payment as a "full and final settlement" may be accepted by the creditor. However they could also cash your cheque and then continue to pursue their claim for the balance - the law allows for that, sadly.

[chas49]

This is more of a practical rather than legal answer - but does your wife use Google Maps on her mobile? If so, does she have Location History turned on? If so, she could look at her Timeline in Google Maps to see where her phone went on the days in question. If it showed that she was at the place of work, I would think this was proof enough that she was at work on those days.

[NomoneyNohoney]

No google maps I'm afraid. No, that's not right: no Google maps I'm pleased to say.

[Lootman]

No google maps I'm afraid. No, that's not right: no Google maps I'm pleased to say.

Given that this is nearly 4 years ago, another idea is to find out what the time limits are for pursuing claims. I suspect it varies by the type and amount of the claim. For instance you can only make a small claims filing for a faulty product or service within 6 years of purchase.

[Clitheroekid]

Bringing this up to date, after a year's silence from the company, they have finally written again, claiming a repayment of the alleged overcharge of 6 days unworked, They have given us 7 days to return the money, or to agree a repayment plan, "to prevent our debt collection services being instructed, which may result in additional charges."

What do readers think of our chances? If they took us to a small claims court, then I'd show bank statements, but they don't prove the bus journeys were to and from their premises, despite them stopping after her employment ended.
Could they instruct debt collectors without getting a court's adjudication first?

Would appreciate comments on whether its likely, that we could expect the bank statements showing the bus journey payments to be strong enough,
Should we go all out and continue to refuse reimbursement, or, as our records leave two days with no transport charges showing, would we be best to offer to pay those two days, in full and final settlement?

My inclination would be just to ignore them. They're not going to sue you for £400 - they've effectively admitted that by threatening to employ debt collectors. And the reference to `additional charges' is just bullsh*t. They have no right to levy any such charges.

Debt collectors can't initiate any legal action themselves unless they're practising solicitors, which the vast majority aren't. They just rely on nuisance / scare tactics to get paid.

However, if you actually want to engage with them then I would be inclined to write back saying that their claim is denied in the absence of conclusive evidence that your wife did not work on those days. If you wanted to get a bit more technical you could say that you've taken legal advice to the effect that they are estopped from claiming payment, and refer them to the case of Avon County Council v Howlett: CA 1983 - https://swarb.co.uk/avon-county-council ... t-ca-1983/

The defence of estoppel arises to protect someone in your wife's situation. There are three main points that need to be established for it to work, namely:

1. Your wife's employer must have done something which led her to believe the money was rightfully hers - this can be established merely by the fact of them paying her.

2. Your wife must have “changed position”, which basically means that she had spent the money believing it to be hers, which I'd be pretty sure she would have by the time they asked for the refund.

3. The over payment must not have been your wife's fault - clearly it wasn't.

That should shut them up!

[NomoneyNohoney]

CK, I love you and if I was female, I'd have your babies!
It is almost exactly a year since they last communicated so I expect it is someone's Outlook calendar flagging it for a new scare letter to be sent.

Whether it gets used or not, do you think there is any value in supporting our contention of when she worked, by relying on bus ticket payment records? That is all we have as our evidence.

I would love to slap them with the Avon County Council case details you provided, for sheer chutzpah, but I worry that saying too much would just provoke them further. Is it likely that our non - response to their letter would actually be the most effective tactic?

Thank you for being such a lifeline when a storm comes along. On further consideration, I've decided having your babies might be disproportionate and too great a commitment, but I'd gladly buy you a pint, if the opportunity arose.

[Peanutte]

I can't add anything to Clitheroe's excellent comments.

But has your wife got any old emails or texts (on her personal account obviously) which say anything about work "I'll be a bit late home this evening as so-and-so is off sick and the other colleague has to go to the dentist and (name of boss) has asked me to stay until 6pm to cover the phones."

If so, make sure she saves them and prints them out. I know printouts can be falsified, but they are generally viewed as evidence.

Pea.

[pochisoldi]

Any "ammunition" regarding whether you were at work or not should be gathered and "kept dry" for the day you go to court.

Reveal nothing - let them show their hand first.

Pointing out Avon v Howlett would happen at some point after they issue a letter before action, to make them realise you aren't going to rollover and that they need to find a softer target. Otherwise ignore and file any demands until the 6 year limitation period ends.

[dionaeamuscipula]

I would respond.

I would say that you do not accept that there has been any over payment and invite them to supply you with their evidence that there has been.

If they do then appoint debt collectors, your letter to them is proof that the debt is genuinely disputed. The debt collectors will almost certainly then refer the debt back to the ex-employer.

I expect the ex-employer are just showing due diligence in chasing what they see as being an outstanding amount due to them. They don't really expect to get paid.

DM

[Peanutte]

Looking back at this, it seems a bit unusual that - after this length of time - a firm is quibbling over £400.

What evidence do they have - after four years - that she did NOT work those days. Surely they would have noticed the overpayment within a month or so. If she says she did work - how can they prove she didn't?

Did employees have to sign in? Swipe in? Log in?

Thinking back to 2019, I would be hard pressed to recall if I was in the office on certain days - and my (then) employer would similarly have problems saying that I was not.

And really? For £400? Even for a small organisation - £400 is really not worth arguing about. It has probably cost that in staff time already - trawling back over whatever records they are presumably referring to.

If I was in your wife's position, I would want to get hold of whoever is in charge, and ask them exactly what they are on about. State categorically that I had been in work on those days and what makes him or her think that I wasn't. If I had been overpaid I would have raised a query as soon as I received my wages, as I'm sure your wife would.

My concern would be that - left unchallenged - the 'debt' will get lumped in with other debts the company is owed and they all get sent off to the debt collecting firm. Next thing is that she receives a string of threatening letters and then a CCJ. As a landlord, I receive post at my rentals for former tenants for sometimes only a few hundred pounds - and sometimes the creditor does issue a CCJ for that amount. Some organisations have a contract with a debt recovery company, and so the cost of one more is trivial. And if left unchallenged, the debt company will still write to her every few months which will annoy/upset her. She at least needs to be able to contact the debt collector and say this is not a valid debt and I have been arguing about it with the former employer. It would then be referred back to the former-employer to be looked at again. She might find that it is some jobsworth pursuing this, and when someone more senior looks at it, they bin it.

[mc2fool]

My concern would be that - left unchallenged - the 'debt' will get lumped in with other debts the company is owed and they all get sent off to the debt collecting firm. Next thing is that she receives a string of threatening letters and then a CCJ.

Surely before a county court judgement is issued she will first receive a formal letter before action and then a court claim for money, which she can defend. Courts don't issue judgements without giving the defendant the opportunity to defend against the claim....

[NomoneyNohoney]

I feel that we need to write back and say that we do not accept their claims of absence as valid.
If we just file the letter from the employer, they will possibly hand it out with any other cases en masse to a debt collector, who will then write and demand the £330, along with their charges of £70.00 or whatever.

Its all fine then saying that we dispute the validity, but it's then become two companies and back to about £400.00. I think it probably better to nip this in the bud before they actually do talk to debt collectors: write back, say again we disagree with their claims of absence, point out the case that CK highlighted, and then see if they move forward with their claim. Were they to do so, we are ready for any debt collectors, and can say that we are in dispute with the employers. I'd hope they would then back away and leave it for the employers to sort out.

I'll draft it this weekend, and send next week, unless there are any compelling reasons people suggest not to do so.

+

By the way, I chanced upon a further delicious twist! You remember in my initial post, I mentioned that they said she had been due one day's pay for March, which they deducted from the claimed £400, leaving the amount they are chasing of approx £330.00?

From this weblink, https://www.birkettlong.co.uk/site/libr ... wages.html , they tell the story of man who owed his employers £523 under a loan.
When he left the company the employer refused to pay his wages of £278.50, so as to reduce the amount owed - this is basically what my wif'e's employers did.
The employee brought a claim about unfair deduction of wages, the Employment Tribunal ordered his ex-employers to repay the £278.50, and then they could only pursue the balance of £244.50, and not the full £523 loan. Basically the employer forfeits the amount the tribunal orders to be paid or repaid.

If this were to happen with my wife's situation, they would first have to make restitution of the deducted £ 66.00, and then carry on the dispute about £330.00, minus that £66.00. I think this would then that their attempted clawback could achieve £264 maximum. That's a bit better!

[NomoneyNohoney]

(By the way something I forgot to mention. She left in March 2019, they actually wrote in January 2020, just saying due to an admin error an over-payment had occurred. They then requested repayment of £336.71, so I wrote back and asked for dates involved and amounts involved.
They gave the dates and I wrote back and said they were wrong in calculating missing days, thus we couldn't agree to a repayment. From the same date in February 2020, there has been no further correspondence till this same date in 2023, so I guess it's just them making one last attempt at recovery. They have already been told we don't agree.)

[AF62]

Personally I would simply write back and say that you are disputing their position and that your wife did work those days (without going into the bus fare details) and any court claim by them would be challenged.

Then I would add that if they disagreed to provide you with the evidence they hold supporting their claim that she didn’t, but until you received that evidence you would consider any further demand for payment or threat to engage debt collectors to be harassment that would be reported to the authorities.

[Clitheroekid]

If we just file the letter from the employer, they will possibly hand it out with any other cases en masse to a debt collector, who will then write and demand the £330, along with their charges of £70.00 or whatever.

As I said above, debt collectors cannot legally add any charges on to the alleged debt when the debtor is a private individual.

My concern would be that - left unchallenged - the 'debt' will get lumped in with other debts the company is owed and they all get sent off to the debt collecting firm. Next thing is that she receives a string of threatening letters and then a CCJ.

There seems to be some confusion about what a `CCJ' is.

It stands for County Court Judgement. In order for a creditor to obtain one they firstly have to issue a County Court claim. It's printed on a form known rather prosaically as a Claim Form, and posted to the debtor by the court.

A debt collector cannot issue court proceedings. Only the creditor or a solicitor acting for them can do so.

The Claim Form is sent to the alleged debtor, and the debtor is given every opportunity to defend it.

Only if the debtor completely ignores it can the creditor then obtain a CCJ - it's known as a default judgement.

Of course, in this case the OP would not ignore it, so it's not a risk.

As a landlord, I receive post at my rentals for former tenants for sometimes only a few hundred pounds - and sometimes the creditor does issue a CCJ for that amount.

The only reason the CCJ has been issued in these cases is that the debtors were former tenants.

They've done a bunk, and perhaps not surprisingly they haven't given their new address to the creditor. So when the creditor issues a County Court claim against them it's sent to the old address. As the debtor no longer lives there it's obviously not defended, so the creditor obtains a (usually completely useless) CCJ.

As I said in my original post the chances of the creditor taking any action are minimal, and if I were you I wouldn't dignify their correspondence with a reply at all. Or if you still do feel inclined to reply you should state that pursuing a claim that has no merit is a criminal offence under the Protection from Harassment Act 1997, and that if you receive any further correspondence they will be reported to the police. Of course it's bluff, but it may well be enough to deter them.

[gryffron]

Otherwise ignore and file any demands until the 6 year limitation period ends.

I’m pretty sure the 6 year limitation period is for the START of a dispute. Once contacted, you cannot simply ignore them until the 6 year clock runs out.

Which doesn’t argue against any of the other defences offered in this thread. Just that statute of limitation is no use to you here. They have started the dispute well within the limitation period.

Gryff

[SteelCamel]

Otherwise ignore and file any demands until the 6 year limitation period ends.

I’m pretty sure the 6 year limitation period is for the START of a dispute. Once contacted, you cannot simply ignore them until the 6 year clock runs out.

Which doesn’t argue against any of the other defences offered in this thread. Just that statute of limitation is no use to you here. They have started the dispute well within the limitation period.

The clock is only reset by the alleged debtor acknowledging the debt or making a payment, and is only stopped by filing a case in court. If you don't acknowledge that you owe anything or make any payment, then after six years the debt is statute barred and can't be enforced in court even if valid. If the case is filed with the court within the six years, the court action can continue past the six year point. Them writing letters is not enough to reset the clock, and nor is the alleged debtor replying if they don't acknowledge the debt.