Case Study – AB vs GH Ltd: The Relevance of Consent in Sexual Harassment Claims

Consent plays an important role in allegations of sexual harassment. The recent Employment Appeal Tribunal (EAT) decision in AB v GH Ltd considers how consent, seniority and intoxication interact with the statutory requirement that conduct must be ‘unwanted’ under the Equality Act 2010 (EA 2010).

The case is a useful reminder for employers that harassment complaints are highly fact-sensitive, and that assumptions about consent should be approached with care.

Conduct of sexual harassment must be unwanted

Under the EA 2010, sexual harassment occurs where ‘a person engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect of either violating the other person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment’.

Conduct must therefore be unwanted for a sexual harassment claim to be successful.

The EHRC Employment Code of Practice advises that the word ‘unwanted’ means the same essentially as ‘unwelcome’ or ‘uninvited’ and it does not mean that express objection is made to the conduct before it is deemed to be unwanted.

Case study: AB v GH Ltd

In AB v GH Ltd, AB and YZ were colleagues, with no difference in seniority between them. AB and YZ were drunk following the staff Christmas party and YZ helped AB and her bags to her hotel room. YZ hugged AB and, at AB’s instigation, this progressed beyond a plutonic hug. This led to physical contact of a sexual nature. YZ realised it was not what he wanted and left.

AB brought claims in the employment tribunal under the EA 2010, including complaints of harassment related to sex or of a sexual nature. The employment tribunal found that, on the balance of probabilities, YZ’s conduct was not unwanted by AB.

The Employment Appeal Tribunal’s decision

AB appealed to the EAT, arguing that the tribunal had failed to consider consent, including capacity to consent, when determining whether YZ’s conduct was unwanted.

The EAT held that consent is relevant to whether conduct is unwanted and whether it was reasonable to regard it as ‘violating dignity or creating an offensive, hostile, degrading, humiliating or intimidating environment’. In relation to consent, the EAT:

• Cautioned against substituting ‘unwelcome’ or ‘uninvited’ for ‘unwanted’. Although unwelcome or uninvited conduct may well be unwanted conduct, it may be confusing to say it is essentially the same. Uninvited conduct might, in fact, be welcome, depending on the evidence.
• Stated that conduct for which consent has been given will often not be unwanted, but consent does not determine the question in every case. Where there is an imbalance of power, sexual conduct may be unwanted, despite consent. A free and enthusiastic consent will almost certainly fail, while an obviously reluctant consent from a junior employee to someone in authority might not.

On capacity to consent, the EAT considered the 2008 case of R v Bree, which established that there may be cases in which intoxication can reach a level where a person lacks capacity to choose, but being drunk, even very drunk, does not necessarily mean that a person lacks capacity and cannot consent.

In this case, the EAT dismissed the appeal, holding that the tribunal had considered both consent and capacity through its detailed factual findings and had not erred in concluding that the conduct was not unwanted.

Minimising the risk of sexual harassment in the workplace

Enhanced duties on employers to take ‘all reasonable steps’ to prevent sexual harassment are expected to come into effect on 30 October 2026. Further information on the changes, and how to prepare, is available in our earlier article on preventing harassment in workplace.

The case of AB v GH Ltd raises specific issues relating to consent, which should form part of an employer’s harassment training and be taken into account by those investigating complaints of sexual harassment, including:

• Expected behaviour at staff events, particularly where alcohol is available.
• The importance of expressly communicating any conduct that is unwanted.
• For managers and those in senior roles, it needs to be made clear that, where there is an imbalance of power, sexual conduct could be deemed unwanted, despite consent being given.

Consent is not always clear-cut

The key takeaway from AB v GH Ltd is that consent is not always clear in a sexual harassment complaint. Each case will depend on its facts, including the wider context, the conduct of those involved and any imbalance of power. Employers should ensure that harassment policies, training and investigation processes help managers and employees understand these issues in practice, particularly in situations where alcohol, workplace events or seniority may affect the assessment of whether conduct was wanted.

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