Complainant

Respondent

Parties

Emma  McDonnell

Health Service Executive

Representatives

Jeanne M Kelly Dominic Dowling Solicitors LLP

Ger Connolly Mason Hayes and Curran LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00068608-002

14/01/2025

The Complaint was lodged with the Commission on the 14th of January 2025.

Several related complaints were withdrawn and the only complaint before me relates to an unlawful

deduction of wages as per the Complainant’s email dated the 31st of October 2025:

The Complainant is proceeding with complaint 002 regarding pay (under Section 6 of the Payment of Wages Act, 1991).

The Complainant alleges that the Respondent acted unlawfully and unreasonably. The Complainant believes that these deductions have been imposed upon her where other employees of the HSE have not been subjected to similar treatment. It is alleged that this is unfair and disproportionate. This conduct it is alleged offends the requirement to adhere to fair procedures. While the Complainant relies on section 5(5) of the Act:

(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

The Respondent relies on Hosford v Minister for Employment Affairs [2024] IEHC 154 that nothing in section 5(5) excludes fair procedures.

The Complainant still owes the Respondent an amount of the order of €35,000 due to an overpayment of wages. The Respondent stated that it is legally obliged to seek repayment of all overpayments of wages under the National Finance Regulations and that it has acted reasonably and the amount of the monthly deduction is fair and reasonable. However, the claim as framed for compensation related to the conduct of the Respondent is misconceived.

The Complainant alleges that the Respondent acted unlawfully and unreasonably. The Complainant believes that these deductions have been imposed upon her where other employees of the HSE have not been subjected to similar treatment. This is unfair and disproportionate. This conduct offends the requirement to adhere to  fair procedures. While the Complainant relies on section 5(5) of the Act it does not provide carte blanche to dictate the terms and it must consult with the Complainant to agree a fair and reasonable repayment schedule having regard to practice and precedents within the HSE.

The Complainant still owes the Respondent more than €35,000 due to an overpayment of wages. The Respondent is legally obliged to seek the repayment of all overpayments of wages under the National Finance Regulations. The claim as framed is legally misconceived.

The Complainant cites Meenan, Employment Law (2nd Ed, Round Hall, 2023) at para. 9-1277:

Common Law Position and Overpayment of Wages

9-127

An overpayment of wages does not fall within the scope of the Act, so if an employee is overpaid wages in error, then it depends on whether it is a mistake of law or of fact. If the overpayment is a mistake of law, then the sum is not recoverable; but if it is of fact, then the sum may be recoverable. In Avon County Council v Howlett,218 a teacher on sick leave following an accident was regularly overpaid by mistake. The Council became aware of this mistake when over £1,000 had been overpaid and sought to have the money repaid. The overpayment was as a result of a mistake of fact on the part of the Council, in that it failed to realise that Mr Howlett had been off sick for more than six months. He had spent the money, believing it to be his. Mr Howlett refused to return the money and the County Council issued proceedings which finally resulted in a judgment of the Court of Appeal, holding that the County Council were estopped from reclaiming the monies which the teacher received based on the employer’s representations. It was also held that if an employer overpays an employee, the employer will be estopped from succeeding in the claim if the following conditions are satisfied:

• 1. 

the employer has led the employee to believe that he or she is entitled to treat the money as his or her own;

• 2. 

the employee receiving the money has in good faith altered his or her position as a result;

• 3. 

the overpayment was not caused primarily by the fault of the employee.

9-128

Slade L.J. stated:

“In the present case it is common ground that the plaintiffs made representations to the defendant which led him to believe that he was entitled to treat the entirety of the overpaid moneys as his own. … Certain authorities suggest that a plea of estoppel can afford a good defence to a claim for restitution only if the plaintiff owed a duty to the defendant to speak or act in a particular way … [T]he plaintiffs, as the defendant’s employers, in my opinion clearly owed him a duty not to misrepresent the amount of the pay to which he was entitled from time to time, unless the misrepresentations were caused by incorrect information given to them by the defendant. It has not been suggested that the misrepresentations were so caused or that the overpayments were brought about by the defendant’s own fault.”

The trial judge had found that the defendant had bona fide and without notice of the plaintiff’s claim changed his position in reliance on the representations. Slade L.J. also relied on Holt v Markham,219 where Scrutton L.J. stated:

“I think that this is a simple case of estoppel. The plaintiffs represented to the defendant that he was entitled to a certain sum of money and paid it, and after a lapse of time sufficient to enable any mistake to be rectified he acted upon the representation and spent the money.”

For completeness I have also considered the following paragraphs that follow on to give full context to the argument being made.

9-129

It was considered immaterial as to whether Markham was entitled to spend all of his gratuity. Thus, Bankes L.J. said:

“[I]t appears that for a considerable time he was left under the impression that, although there had been at one time a doubt about his title to the money, that doubt had been removed, and in consequence he parted with his War Savings certificates. Having done that, it seems to me that he altered his position for the worse, and consequently the plaintiffs are estopped from alleging that the payment was made under a mistake of fact.”

9-130

Again in Howlett Slade L.J. stated:

“I recognise that in some circumstances the doctrine of estoppel could be said to give rise to an injustice if it operated so as to defeat in its entirety an action which would otherwise lie for money had and received. This might be the case for example where the sums sought to be recovered were so large as to bear no relation to any detriment which the recipient could possibly have suffered.”220

9-131

The court intimated that, if the employee still had the money in his possession, the decision might have been different. These issues were also considered in Philip Collins Ltd v Davis,221 where estoppel in respect of the payment of royalties was considered. The mere tendering of a payment under a contract does not, without more, amount to a representation that the payment is due.222 No reasonable person will assume that mistakes may not be made. The tender may well amount to a representation that the tenderer believes the sum tendered to be due, but that is a representation as to the tenderer’s current state of mind and not as to the parties’ rights under the contract. Nor is there any evidence in the instant case that the defendants have acted to their detriment in respect of any specific royalty payment. In Scottish Equitable Plc v Derby,223 it was considered that there must be some causal link between the mistaken receipt of the overpayment and the defendant’s change in position.

Based on the plain reading of the 1991 Act, an overpayment is excluded from provisions that apply to other deductions in section 5. How the overpayment should be recouped is not mandated in the Act:

(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

In Hosford v Minister for Employment Affairs [2024] IEHC 154 the Claimant stated that it would appear that the 1991 Act statutorily excluded fair procedures and that the words “fair and reasonable, having regard to all the circumstances” should be inserted into section 5(5) of the 1991 Act. At paragraph 98 the Court found that:

“His claim in relation to section 5(5) is that it should be amended by adding the words “fair and reasonable, having regard to all the circumstances” as, on his case, the section statutorily excludes fair procedures. This argument, and his complaint more generally, appears to misunderstand section 5 of the 1991 Act and its operation…Section 5(5) simply provides that that prohibition doesn’t apply where the purpose of the deduction is the reimbursement of an overpayment of wages. Nothing in section 5(5) mandates deductions, or excludes fair procedures.”

The Act provides for compensation as follows:

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of  as respects a deduction made by an employer from the wages or tips or gratuities] of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be] (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

The complaint before me is that the conduct of the Employer has not been reasonable having regard to how they engaged with the employee and about the actual amount that is being deducted each month. Based on what is seen as unfair and unreasonable conduct, the claim is being made under the 1991 Act for an amount of compensation to be determined by the Adjudicator.

This jurisdiction question relates  to whether an Adjudicator has jurisdiction to hear such a complaint under the 1991 Act.

The Act is clear when it states:

5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages

The Act is stating that a deduction made by an employer from the wages of an employee is not unlawful.

The reference to fair and reasonable is at 5(2) and does not apply to an amount arising from a computational error:

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

And in line with Hosford there is no exclusion of what is fair and reasonable as it applies to arrangements for deducting an overpayment.

What is clear is the fact that the 1991 Act does not provide for compensation to a party where it is found that the Respondent was not fair and reasonable in how deductions are made, as redress is detailed in the Act as follows:

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of  as respects a deduction made by an employer from the wages or tips or gratuities] of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

In Balans v Tesco Ireland Ltd [2020] IEHC 55 the Court concurred with the decision reached in Dunnes Stores (Cornelscourt) Ltd v Lacey [2005] IEHC 417 that the starting point in the analysis must be:

34. Section 5 of the Act of 1991 prohibits the making of deductions from wages save in certain circumstances. Section 5(6) provides that where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee, then, except insofar as the deficiency or non – payment is attributable to an error of computation, the amount of the deficiency or non – payment should be treated as a deduction made by the employer from the wages of the employee on the occasion.

35. Central to the court’s analysis must be the concepts of wages properly payable and the circumstances in which, if there is a deficiency in respect of those such payments, it arose as a result of an error of computation.

However, this is not a claim that relates to an unlawful deduction but about the conduct of the employer when recouping an overpayment arising from a computational error.

At the hearing the Adjudicator asked was the amount owing and it was not disputed that the amount owing was an overpayment. No argument has been made other than the conduct of the Respondent fell short of what fair procedures demands and for that deficiency an award of compensation should be made. The Adjudicator on the plain reading of the Act does not have the statutory power to do so.

As I have no power to make such an award, I find that the claim before me is misconceived.

I decline to hear the Complaint as the Act does not provide for such compensation.

I determine that the complaint is not well founded.

What is clear is the fact that the 1991 Act does not provide for compensation to a party where it is found that the Respondent was not fair and reasonable in how deductions are made. No finding of fact has been made on such a claim.

As I have no power to make such an award, I find that the claim before me is misconceived.

I decline to hear the complaint as the Act does not provide for such compensation.

I determine that the complaint is not well founded.

No Jurisdiction-Misconceived