AB v GH Limited

Under Equality Act 2010, consent is relevant, but not conclusive, to whether sexual conduct is unwanted and to the statutory assessment of its effect. Consented conduct may still be unwanted, including where there is an imbalance of power. A person who retains capacity and consents while intoxicated gives valid consent; whether capacity and consent existed is fact-specific. Tribunals should focus on the statutory word unwanted, since substitute terms may alter its meaning.

AB v GH Limited concerned an appeal from an Employment Tribunal decision dated 2 July 2024. The Tribunal dismissed AB’s claims, including sexual harassment, victimisation and unfair constructive dismissal. The appeal concerned the first alleged sexual harassment incident, after a work Christmas party. The Tribunal found that AB and YZ, a colleague of equal seniority, were drunk, that AB initiated the sexual contact, and that it was not unwanted. AB also challenged the refusal to extend time for her out-of-time claims. The central questions were whether the Tribunal had erred in considering consent and capacity, and whether it had failed to consider a significant factor in deciding whether an extension was just and equitable.

The appeal was dismissed.

1. Consent under section 26. The word consent does not appear in the definition of harassment or sexual harassment in the Equality Act 2010, but consent is relevant to whether sexual conduct is unwanted and to the factors in section 26(4). Consent is not determinative. Conduct may remain unwanted despite consent, particularly where there is an imbalance of power. If consented conduct is nevertheless unwanted, the Tribunal must still consider the statutory effect test and the other circumstances. Free and enthusiastic consent strongly points away from both requirements; reluctant consent, especially by a junior employee to a person in power, may not. The Tribunal’s findings disclosed no power imbalance and supported its conclusion that the conduct was initiated and consented to by AB.
2. Intoxication and capacity. The Tribunal was not required to decide consent by applying criminal law under section 3 of the Sexual Offences Act 2003. The EAT applied R v Bree [2007] EWCA Crim 804; [2008] QB 131 for the proposition that a person who remains capable of choosing may validly consent while drunk, even very drunk. Whether capacity and consent existed is a question of fact. The Tribunal considered and rejected AB’s case that she lacked capacity, on findings that she was able to converse, initiated the contact and agreed to what followed.
3. Meaning of unwanted. The Equality and Human Rights Commission’s Code of Practice was to be taken into account under section 15(4)(b) of the Equality Act 2006. Although unwelcome or uninvited conduct may be unwanted, treating those terms as equivalent may confuse or alter the statutory meaning. Tribunals should generally use the ordinary statutory word. The Tribunal’s reasoning, read as a whole, addressed whether the conduct was unwanted.
4. Extension of time. The Tribunal did not err by failing to address an alleged employer contribution to delay that had not been put to it in submissions or evidence. Its finding that the earlier account from YZ was incomplete was consistent with the absence of a clear contemporaneous account. Faded memories and the resulting prejudice were matters it could weigh against an extension under section 123 of the Equality Act 2010. The challenge based on the alleged error under Ground 1 fell away when that ground failed.

The appeal was dismissed.

1. Employment Appeal Tribunal, [2026] EAT 115 : appeal dismissed.
2. Employment Tribunal: decision dated 2 July 2024 dismissed the claims. No citation is stated in the judgment.