AB v GH Limited

Facts

The appellant, Miss AB, was employed by GH Limited. Following the respondent's Christmas party on 16 December 2021, her colleague YZ helped her to her hotel room, where an intimate incident occurred; she alleged that he had sexually assaulted her. She brought proceedings in the Employment Tribunal complaining of eight allegations of harassment related to sex or of a sexual nature contrary to section 26 of the Equality Act 2010, on dates between 17 December 2021 and 17 November 2022, one allegation of victimisation on 21 November 2022, and unfair constructive dismissal. She resigned on 23 March 2023 giving two months' notice, her employment ending on 18 May 2023, and presented her claim form on 22 June 2023. After a five-day full merits hearing, the Employment Tribunal dismissed every complaint in reserved reasons dated 2 July 2024 running to 38 pages. It found that the hotel incident had not occurred as alleged and that the conduct which did occur was not "unwanted"; it dismissed the remaining harassment and victimisation allegations; it found no constructive dismissal and, in any event, affirmation of the contract; and it declined to extend time under section 123 of the Equality Act 2010 for the complaints presented out of time. The appellant appealed on two grounds only, concerning consent and the extension of time. An order was made under Rule 23 of the Employment Appeal Tribunal Rules 1993 anonymising AB, YZ and GH Ltd.

Decision

Issues

• Whether the Employment Tribunal erred in law by failing to consider consent, including capacity to consent when intoxicated, in deciding whether the conduct was "unwanted" under section 26 of the Equality Act 2010.
• Whether the Tribunal failed to take into account a significant factor when deciding that it would not be just and equitable to extend time for the out-of-time complaints.

Reasoning

Griffiths J, sitting with Miss Gloria Mills CBE and Mrs Gemma Todd, began by explaining that the word "consent" appears nowhere in section 26 of the Equality Act 2010, whose definition derives from the Equal Treatment Directive. Consent is nonetheless relevant to whether conduct of a sexual nature is "unwanted" and to the mandatory factors in sub-section (4). Drawing on Greasley-Adams v Royal Mail Group Ltd, where Lady Haldane held the claimant's perception to be a mandatory component, and on Underhill LJ's analysis in Pemberton v Inwood distinguishing the subjective from the objective question, the tribunal observed that consent given may still leave conduct "unwanted" where there is an imbalance of power: a free and enthusiastic consent will almost certainly defeat a claim, an obviously reluctant one from a junior employee may not. Turning to the Equality and Human Rights Commission's Code of Practice on Employment (2011), which by section 15(4)(b) of the Equality Act 2006 must be taken into account, the tribunal doubted paragraph 7.8's equation of "unwanted" with "unwelcome" or "uninvited": "unwanted" is a plain English word needing no gloss, and substituting words risks changing the meaning. On the facts, which were unchallenged, the Tribunal had found no difference in seniority between AB and YZ, that both were drunk, and that AB had herself initiated the physical contact and the removal of her clothing before YZ withdrew. The Tribunal's disclaimer that it was not deciding consent "for the purposes of criminal law" responded to the appellant's own skeleton argument; in substance it had considered consent and capacity and rejected her case that she was in no fit state to consent. Adopting Lord Judge LCJ's reasoning in R v Bree, the appeal tribunal held that a drunken consent is still consent unless capacity is lost, these being questions of fact. Beckwith v Solicitors Regulation Authority, relied on by the appellant, was factually dissimilar and yielded no principle. On Ground 2, the alleged discouragement from grievance had not been put in evidence below, the appellant had in fact lodged a grievance in October 2022 yet delayed until June 2023, and the Tribunal was entitled to find no clear contemporaneous account from YZ.

Case history