Consent and intoxication

Miss AB v GH Ltd [2026] EAT 115

In this case, the Employment Appeal Tribunal (“EAT”) considered the treatment of consent and intoxication in the context of a sexual harassment claim and in particular, whether an Employment Tribunal (“ET”) is required to separately analyse issues of consent when determining whether conduct of a sexual nature was "unwanted".

The claim arose following the Respondent's Christmas party in December 2021, after which the Claimant alleged that her colleague, YZ, had sexually assaulted her at the hotel in which they were both staying. The ET found that both parties had been drunk, that the Claimant had instigated physical contact, and that the sexual touching was consensual. YZ then decided to stop and leave of his own accord. The ET concluded that the conduct had not occurred as alleged and the conduct that did occur was not unwanted. It dismissed the Claimant’s claims of sexual harassment, victimisation and unfair constructive dismissal.

On appeal, the Claimant argued that the ET had failed to separately address consent, including capacity to consent, when assessing whether YZ's conduct was "unwanted". The EAT confirmed that, although consent is not part of the statutory definition of harassment under section 26 EqA, it is relevant to whether conduct was “unwanted”. Where consent is given, the conduct will often not be “unwanted”. However, consent is not determinative in every case and in particular where there is a power imbalance as conduct may, in such circumstances, be “unwanted” despite consent having been given.

The EAT also cautioned against glossing the statutory word "unwanted" by substituting alternative terms such as "unwelcome" or "uninvited". On intoxication, the EAT drew on the criminal case of R v Bree [2008] QB 131 to confirm that being drunk, even very drunk, does not automatically vitiate consent. A drunk consent is still a consent, provided the person retains the capacity to make a choice. On the facts, the ET had made findings that the Claimant was drunk but not "very drunk", that she had been able to engage in conversation before any physical contact, and that she had instigated it. The EAT therefore concluded that the ET had considered both consent and capacity, and had made no error in its conclusion that the conduct was not unwanted.

This case is a useful reminder that apparent consent should not be treated as determinative when investigating a complaint of sexual harassment. The wider circumstances will matter, including the seniority of those involved, any power imbalance, alcohol consumption and the context in which an incident takes place. Employers should also bear in mind that work-related social events are likely to be treated as part of the working environment even where they take place outside normal working hours.

This case is also timely given that, from 30 October 2026, the employer's duty to prevent sexual harassment will strengthen to taking "all reasonable steps". Employers should use this as an opportunity to review risk areas such as work events where alcohol is present, ensuring managers are trained to respond appropriately where consent, intoxication or a power imbalance is in issue, and maintaining clear, contemporaneous records of accounts and steps taken.