Employment Appeal Tribunal confirms that consent is relevant, but not necessarily determinative, when assessing whether sexual conduct is “unwanted”.
A recent Employment Appeal Tribunal decision provides an important reminder that consent is not necessarily the end of the analysis when deciding whether sexual conduct amounts to harassment under the Equality Act 2010.
The decision in AB v GH Ltd is particularly pertinent for employers ahead of the strengthened duty to take reasonable steps to prevent sexual harassment, which comes into force on 30 October 2026.
The case highlights the importance of considering the wider circumstances surrounding an interaction, including power dynamics, alcohol and whether an individual's consent was genuinely voluntary.
Under section 26 of the Equality Act 2010, sexual harassment occurs where there is unwanted conduct of a sexual nature which has the purpose or effect of violating a person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.
The statutory test therefore focuses on whether the conduct was “unwanted”. Consent is relevant to that question. However, the EAT confirmed that consent is not a separate statutory test and is not necessarily determinative.
The circumstances in which consent was given must also be considered.
In AB v GH Ltd, the claimant alleged that a colleague, YZ, had sexually assaulted her following a work Christmas party. Both individuals had consumed alcohol. The Employment Tribunal rejected the claimant's account and found that she had started the physical contact and the conduct that followed.
The Employment Tribunal also found that the claimant and YZ performed the same role and therefore found no relevant imbalance of power. On those findings, it concluded that the conduct was not unwanted.
The claimant appealed, arguing that the Employment Tribunal had failed properly to consider consent and whether her intoxication meant that she lacked capacity to consent.
The Employment Appeal Tribunal dismissed the appeal. It concluded that the ET had considered both issues through its factual findings and was entitled to reach its conclusions.
The EAT confirmed that, in many cases, evidence of consent will show that conduct was wanted. However, clear consent does not necessarily decide the issue.
The surrounding circumstances may be important. For example, an employee may apparently consent to sexual conduct involving a person in a position of authority. A significant imbalance of power may affect how freely that consent was given. This is particularly relevant in workplace relationships involving differences in seniority, influence or professional dependency.
The Employment Appeal Tribunal also cautioned against treating “unwanted” as synonymous with “unwelcome” or “uninvited”. Conduct may be uninvited but nevertheless wanted. Conversely, conduct which was initially wanted may later become unwanted. Employers should therefore recognise that consent can change during an interaction.
The decision also considered intoxication. Being drunk does not automatically mean that a person lacks capacity to consent. However, intoxication can reach a point where capacity is lost.
In this case, the ET found that although the claimant was drunk, she remained capable of expressing what she wanted and had started the conduct. It therefore concluded that she retained capacity. For employers, alcohol should nevertheless be recognised as a potential risk factor when assessing workplace social events.
The case reinforces the need for a contextual and evidence-based approach to sexual harassment. Employers should consider whether their policies, risk assessments and training adequately address:
work-related social events and parties;
the availability and consumption of alcohol;
relationships involving significant differences in seniority;
power imbalances and professional dependency; and
situations where conduct may change from wanted to unwanted.
Managers and investigators should also avoid treating clear consent as conclusive. They should consider the circumstances surrounding the interaction, including the relationship between the individuals, the effect of alcohol and whether responses appeared genuinely voluntary.
The strengthened duty to prevent sexual harassment makes this a suitable time for employers to review their preventative measures. This should include reviewing sexual harassment policies, workplace risk assessments, employee and manager training, reporting arrangements and procedures for work-related social events.
The key message from AB v GH Ltd is clear: consent should not be assessed in isolation. Employers need to understand the context in which workplace interactions occur, identify foreseeable risks and take proper preventative steps.
With the strengthened duty taking effect on 30 October 2026, employers should ensure that their approach to preventing sexual harassment is sufficiently robust, practical and responsive to the realities of workplace relationships.
If you need any further advice and help, please do not hesitate to contact the Quest HR Advice Line on 01455 852028.
