Consent, alcohol and sexual harassment: what does AB v GH Ltd mean for employers?

Robab Ali, Solicitor

The Employment Appeal Tribunal’s decision in AB v GH Ltd [2026] EAT 115 is a useful reminder that consent will not necessarily bring a sexual harassment complaint to an end and that the wider circumstances remain important.

Christmas parties, drinks after work and client entertainment can blur the line between social and professional interactions. When concerns arise, employers may find themselves managing grievances, disciplinary processes and potential Employment Tribunal claims long after the event itself has ended.

What was the claim about and what did the EAT decide?

The Claimant alleged that following a work Christmas party she had been sexually assaulted by a colleague and brought a number of claims including for sexual harassment. Her claims were not upheld. The Employment Tribunal found on the evidence before it that although alcohol had been consumed, there was no basis for concluding that the Claimant lacked capacity to consent, and that the conduct was not unwanted.

The Claimant appealed the decision in relation to the sexual harassment claim arguing that the Tribunal should have considered consent when determining whether the conduct was unwanted.

The EAT upheld the findings and dismissed the appeal. It confirmed that whilst consent is relevant to whether conduct was “unwanted” for the purposes of a claim of sexual harassment under section 26 of the Equality Act 2010, it is not necessarily determinative. The wider circumstances will also matter, including the nature of the relationship between the individuals and any imbalance of power.

The EAT made it clear that section 26 does not require “consent” to be treated as a separate statutory test. Rather, consent is relevant to the question of whether the conduct was “unwanted” and to the other circumstances which must be considered.

It was further confirmed that intoxication does not automatically mean an individual lacks capacity to consent. Whether an individual has capacity will depend on the particular facts, including their level of intoxication.

Importantly, the judgment emphasises the need to apply the statutory language in section 26. The question is whether the conduct was “unwanted”. Employers should avoid substituting alternative terms such as “uninvited” or “unwelcome”, which risk diverting attention from the statutory test.

For employers investigating complaints of this nature, that distinction is critical. The question is not simply whether the individual appeared to consent or whether they say that they consented. Instead, employers must assess whether the conduct was unwanted, taking into account the evidence and the relevant circumstances.

What does this mean for employers?

Employers should be cautious about treating apparent consent as determinative when assessing a sexual harassment complaint. Consent may be relevant but it should be considered in the context of whether the conduct was unwanted.

The wider circumstances may be important, including seniority, workplace relationships, alcohol consumption and where an incident takes place. This may be especially important where there is a reporting line, a significant difference in seniority, or another form of workplace influence between the individuals involved. Employers should also remember that work-related social events are still likely to be treated as work even where they occur outside normal working hours.

The practical implication is that investigations should focus on the evidence and the surrounding circumstances as a whole, rather than treating an assertion of consent as determinative.

What should employers do?

Since October 2024, employers have been required to take reasonable steps to prevent sexual harassment. From 30 October 2026, that duty will strengthen, requiring employers to take “all reasonable steps” to prevent sexual harassment.

The new third-party harassment duties come into force at the same time, which will be particularly relevant to employers whose staff regularly interact with clients, customers or other external contacts.

Employers should therefore consider whether their current arrangements would stand up to scrutiny if a complaint arose tomorrow. In particular:

• Identify the risks: Consider where problems are most likely to arise, including work parties, client entertainment, travel and events where alcohol is involved. Risk assessments should reflect the circumstances in which employees actually work, including social events and contact with third parties.
• Management training: Managers should know how to recognise inappropriate behaviour, respond to concerns and escalate issues, particularly where there is a power imbalance. They should also understand how to respond where consent, intoxication or an imbalance of power is raised as part of a complaint.
• Record keeping: Risk assessments, training, reporting arrangements and action taken in response to concerns should all be documented. If those steps are later scrutinised, the business will need to be able to demonstrate what it actually did, rather than simply what its policies say it should have done.

AB v GH Ltd does not change the law on sexual harassment, but it is a timely reminder that workplace investigations rarely turn on a single factor. Consent, alcohol consumption and the wider circumstances of the relationship may all require careful consideration before conclusions are reached.

With the preventative duty strengthening on 30 October 2026, now is a good opportunity for employers to review their policies, training, reporting mechanisms and workplace culture to ensure they can demonstrate that all reasonable steps have been taken to prevent sexual harassment.

For further assistance, please contact our Employment team on 0161 832 3434, or at [email protected].