In this case, the EAT confirmed that consent is relevant when deciding whether sexual conduct is “unwanted” under the Equality Act 2010, but it will not necessarily be decisive.
Background
Section 26 of the Equality Act 2010 ("Section 26") states that harassment occurs where A engages in unwanted conduct related to a relevant protected characteristic, or unwanted conduct of a sexual nature, and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for B. The word consent is not used in the statutory definition.
Facts
The claimant alleged that, after the respondent’s Christmas party on 16 December 2021, a colleague, YZ, sexually assaulted her at the hotel where they were both staying. An employment tribunal dismissed the claimant's complaints of sexual harassment and victimisation.
The tribunal found that both the claimant and YZ were drunk, that the claimant initiated physical contact, and that the sexual touching was consensual. It found that YZ realised this was not what he wanted and left. The tribunal also found that YZ was a colleague doing the same role as the claimant, so there was no difference in seniority and no evidence of an imbalance of power between them. On the basis of these facts, the tribunal found that the claimant did not prove that YZ's conduct was unwanted by her.
The harassment and victimisation claims were out of time. The tribunal decided it was not just and equitable to extend the time limit. The claimant appealed.
EAT Decision
The EAT dismissed the appeal.
The claimant argued that the tribunal should have considered consent and capacity to consent when determining whether she had been sexually harassed. The EAT agreed that consent is relevant to whether conduct of a sexual nature is unwanted within the meaning of Section 26. However, it held that the tribunal had properly considered this despite not explicitly using the word consent in its factual findings. It had said that the claimant had "initiated", "instigated", and "suggested" behaviour, which all conveyed consent.
If there is an imbalance of power, sexual conduct may be unwanted even though consent has been given. In such a case, the tribunal will need to consider whether the conduct, which is “unwanted” but to which consent has been given, satisfies the objective test of whether it was reasonable for the conduct to be regarded as violating B's dignity, or creating an intimidating, hostile, degrading, humiliating, or offensive environment for B. The giving of consent may be relevant to that analysis too.
There may be cases where a person is so drunk that they lack the capacity to give consent. However, a person may be drunk and give consent. That consent is still valid even though it is "drunk consent". The fact a different judgment would have been made if the person had not been drunk does not necessarily mean the consent is not valid. These are questions of fact in each case.
The word "unwanted" in Section 26 is a plain English word that is easily understood by everyone. There is a risk that substituting words such as "unwelcome" or "uninvited" change the meaning, and focus should be on the word "unwanted". Paragraph 7.8 of the Equality and Human Rights Commission's Equality Act 2010 Code of Practice on Employment states "The word 'unwanted' means essentially the same as 'unwelcome' or 'uninvited'". The EAT considered that this may be confusing, giving the example that uninvited conduct may in fact be welcome, and this would depend on the evidence.
It was not an error of law for the tribunal to decline to be drawn into questions of criminal law and practice in cases involving sexual assault under section 3 of the Sexual Offences Act 2003.
The claimant also argued that the tribunal had erred in not considering the respondent's part in the delay when refusing to extend time. On this point, the EAT held that even if the respondent had dissuaded the claimant from making a formal grievance, this "should not have dissuaded her from escalating her complaint to a fair and independent Employment Tribunal; quite the contrary."
What does this mean for employers?
This case makes clear that consent is relevant to but not determinative of whether conduct is unwanted. It also gives useful guidance on how tribunals should approach consent and the capacity to consent in sexual harassment claims. Where alcohol is involved, employers should not assume that intoxication automatically removes capacity to consent. They should instead assess the evidence, including whether the individual could understand the situation, communicate choices and participate in events. Where there is an imbalance of power, workplace investigations should consider the seniority of the parties, reporting lines, and any pressure on or vulnerability of those reporting sexual harassment.
From 30 October 2026, the Employment Rights Act 2025 will strengthen the statutory duty on employers to prevent sexual harassment from a duty to take reasonable steps to a duty to take all reasonable steps. Employers must therefore ensure they have appropriate mechanisms in place for those who wish to report sexual harassment, carry out prompt investigations, keep records, and carry out swift disciplinary action where findings are upheld.
