EAT confirms consent remains relevant to whether conduct is "unwanted" in harassment claims

Background

In the case of AB v GH Limited, the claimant brought claims of sexual harassment, victimisation, and unfair constructive dismissal against the respondent. The central allegation concerned an incident following the respondent's Christmas party, during which the claimant alleged she was sexually assaulted by a colleague at a hotel.

The Tribunal dismissed all claims. It found that the claimant herself instigated the physical contact, that the colleague acted within the bounds of what she invited, and that he voluntarily withdrew. The conduct was therefore not "unwanted" as required by the Equality Act 2010 (Act). Both were drunk, but the Tribunal rejected the claimant's case that she lacked capacity to consent.

The harassment and victimisation claims were also out of time. The Tribunal declined to extend the time limit, finding it was not just and equitable to do so.

The claimant appealed on two grounds: that the Tribunal erred in its treatment of consent and capacity, and that it failed to account for the respondent's contribution to the delay when refusing to extend time.

EAT decision

The Employment Appeal Tribunal (EAT) dismissed the appeal on both grounds.

On the first ground, the EAT clarified that although the Act does not use the word "consent," it is directly relevant to whether conduct is "unwanted." Freely given consent will often mean the conduct was not "unwanted," though where there is a power imbalance, conduct may still be "unwanted" despite apparent consent. Here, the parties were colleagues of equal seniority.

The EAT held that the Tribunal had properly considered consent and capacity despite not using that word explicitly; its use of "initiated," "instigation," and "suggested" all entailed consent.

On the second ground, the claimant argued the respondent discouraged her from raising a formal grievance. The EAT rejected this. The claimant was encouraged to complain formally but chose not to, and after lodging a grievance still waited eight months to bring proceedings. The Tribunal properly weighed prejudice to both parties, noting faded memories and the absence of a contemporaneous account from the colleague.

Learning points for employers

While this case is highly fact-sensitive, it offers helpful guidance on how Tribunals approach consent and capacity in harassment claims. The key takeaway is that consent is relevant to, but not always determinative of, whether conduct is "unwanted" for the purposes of the Act. Where there is an imbalance of power, sexual conduct may still be "unwanted" even if surface consent was given. Employers should be alert to workplace power dynamics when investigating allegations.

The case also highlights the importance of a prompt investigation. Employers should obtain detailed contemporaneous accounts from all parties as soon as an allegation is raised. Delay caused real evidential prejudice here, and this weighed against extending the time limit.

For more information or advice, please get in touch with Sofia Efstathiou in our Employment team.