(3) Unreasonable refusal not merely failure

(3)     Unreasonable refusal not merely failure

Simple and straightforward though the EAT's construction of ERA 1996 s 92(1) and (2) in Horsley Smith and Sherry Ltd v Dutton [1977] IRLR 172, [1977] ICR 594, EAT might have been, the interpretation overlooked ERA 1996 s 93(2) which provides for a remedy only if the employer unreasonably refuses to provide a statement (leaving aside for the moment a complaint under s 93(2)(b) that the reasons given were inadequate or untrue). It may be considered that the employers in Dutton behaved in a perfectly reasonable manner, and that the employees in Joines v B and S (Burknall) Ltd [1977] IRLR 83, IT and Dutton all seem to have used the section merely as a device for squeezing an extra two weeks' pay out of the employer. What may be regarded as the more unfortunate consequences of the approach exhibited by the EAT in Dutton appear to have been mitigated by Kent County Council v Gilham [1985] IRLR 16,