EAT clarifies role of consent in sexual harassment claims in AB v GH Limited

The Employment Appeal Tribunal has dismissed an appeal against the dismissal of sexual harassment and constructive dismissal claims, providing clarification on how tribunals should approach consent and intoxication when assessing whether conduct was "unwanted" under section 26 of the Equality Act 2010.

In AB v GH Limited [2026] EAT 115, Mr Justice Griffiths, sitting with Miss Gloria Mills CBE and Mrs Gemma Todd, upheld an Employment Tribunal's finding that a colleague's conduct towards the appellant following a work Christmas party had not been unwanted, and that it would not be just and equitable to extend time for her other claims.

The underlying tribunal had heard eight allegations of sexual harassment, one of victimisation, and a claim of constructive dismissal following the appellant's resignation in 2023. Only the first alleged incident, said to have occurred at a hotel after a Christmas party in December 2021, formed the subject of this appeal, alongside a separate challenge to the tribunal's refusal to extend time for the out of time claims. The tribunal had found as fact that both the appellant and her colleague, referred to as YZ, were drunk, that the appellant had instigated physical contact and the removal of her own clothing, and that YZ ultimately withdrew of his own accord once he realised the situation was not what he wanted.

The appellant argued that the tribunal had erred in law by declining to address consent and capacity to consent, pointing to a passage in its reasons stating it had not dealt with "the question of consent, including capacity to consent, for the purposes of criminal law". The EAT rejected this reading, finding that the tribunal had properly grappled with consent throughout its reasoning, notwithstanding its choice not to use the word itself, focusing instead on the statutory language of "unwanted conduct". The tribunal's findings that the appellant had "initiated", showed "instigation" and "suggested" the conduct in question were, the EAT held, findings that inherently addressed consent and capacity.

The judgement set out more general guidance on the interaction between consent and harassment claims. While section 26 does not use the word "consent", the EAT held it remains relevant both to whether conduct is "unwanted" and to the statutory factors a tribunal must weigh, including where an imbalance of power might render consented-to conduct still unwanted. The EAT also cautioned against treating "unwanted" as synonymous with "unwelcome" or "uninvited", as suggested in the Equality and Human Rights Commission's Code of Practice, finding that substituting glosses for the plain statutory word risked altering its meaning.

On intoxication, the EAT applied the reasoning in R v Bree [2008] QB 131, holding that a person who is drunk, even very drunk, but nonetheless retains the capacity to choose and does in fact consent, gives valid consent notwithstanding that a sober version of themselves might have chosen differently. Applying that principle, the EAT found the tribunal had been entitled to conclude that the appellant, though drunk, had retained the capacity to and did in fact instigate the conduct, such that none of it was unwanted.

On the separate limitation point, the EAT rejected arguments that the tribunal had overlooked the respondent's contribution to delay or wrongly assessed prejudice arising from the lack of a full contemporaneous account from YZ, finding the tribunal's conclusions on both points were properly reasoned and supported by its findings of fact.

The appeal was dismissed on both grounds.