Employment Appeal Tribunal Clarifies Consent and Intoxication in Sexual Harassment Claims
The Employment Appeal Tribunal has upheld a ruling, confirming that drunkenness does not automatically invalidate consent in workplace sexual harassment cases.
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Tribunal Upholds Dismissal of Harassment Claims
The Employment Appeal Tribunal (EAT) has delivered a significant judgment regarding the role of consent and intoxication in claims of sexual harassment. In the case of Miss AB v GH Limited [2026] EAT 115, the EAT dismissed an appeal brought by an employee who alleged she had been sexually harassed following an office Christmas party.
Understanding Consent and Capacity
A core issue in the appeal was whether the Employment Tribunal (ET) had erred in its treatment of the appellant's capacity to consent while intoxicated. The EAT clarified that, while Section 26 of the Equality Act 2010 does not explicitly use the term consent, it remains highly relevant when determining whether conduct is "unwanted."
Mr Justice Griffiths, presiding, noted that although there may be instances where extreme intoxication negates the capacity to consent, the law does not operate on a binary basis. Citing the criminal law precedent of R v Bree, the court confirmed that a person who is drunk, even very drunk, may still be capable of giving valid consent. The EAT emphasised that these are ultimately questions of fact to be decided by the tribunal based on the specific evidence presented.
Focusing on Statutory Language
The judgment also served as a reminder to tribunals to adhere strictly to the wording of the Equality Act. The EAT cautioned against replacing the statutory word "unwanted" with other terms such as "unwelcome" or "uninvited." The court reasoned that using such a gloss can lead to confusion and potentially alter the legal threshold intended by Parliament.
Assessment of Time Limits
The appellant also challenged the ET's decision that it was not just and equitable to extend time limits for her claims. The EAT found no fault in the original tribunal's reasoning, noting that the appellant had been aware of time limits and had access to advice, yet failed to bring her claims in a timely manner. The prejudice caused to the respondent by the long delay, which hampered the ability to obtain contemporaneous evidence, justified the decision to refuse an extension.
This ruling reinforces the importance of evidence and factual findings in harassment cases, confirming that courts will rely on the specific circumstances of each case rather than broad assumptions about intoxication.
Read the entire judgment here: Miss AB v GH Limited [2026] EAT 115
