Sexual harassment claim failed when it was found that the claimant instigated the sexual contact after the Christmas party and it was therefore not unwanted as required in the legislation.

This case involved an incident at the work Christmas party.  After the Christmas party another colleague known as YZ helped the claimant to her hotel room and helped her with her bags.  Both the claimant and YZ were drunk.  The claimant got upset at having to move house and being unsuccessful in a job application.  YZ gave the claimant a hug and at the claimant’s instigation it progressed beyond a platonic hug.  With the claimant’s help YZ unzipped the claimant’s dress, pushed down the bra strap and consensually touched the claimant’s breast.  YZ then realised that he did not want this to continue and left.

The claimant brought a claim of sexual harassment as a result of this interaction against her employer.

At first instance, the Tribunal dismissed the sexual harassment claim.  The claimant appealed this arguing that the Tribunal had erred in how it treated consent and the capacity to consent.

The EAT outlined that the legislation relating to harassment/sexual harassment does not use the word ‘consent’ but rather states that the conduct of a sexual nature is ‘unwanted’.  To this end, they outlined that if there was an imbalance of power it could be the case that the sexual conduct was consensual (in the criminal law meaning) but would be unwanted when viewed through the prism of the Equality Act/Employment related legislation.   The word ‘unwanted’ was regarded as a plain, English word which is understood by everyone.  There was no need for the Tribunal to add a gloss to it.   In terms of engaging in the issue of consent, the EAT reminded us of the criminal law judgments (such as R v Bree [2008] which states that a drunken consent is still consent and the fact that a different decision would have been made had the person not been drunk does not invalidate the consent given.

Bearing this in mind, the EAT dismissed the claimant’s appeal.

A now annual tradition of having judgments arising from the work Christmas party.  This case gave the Tribunal the opportunity to examine and distinguish between consent in relation to sexual conduct and unwanted conduct as set out in defining harassment.  The Tribunal makes it clear that unwanted should be given an ordinary meaning and there was no need to substitute words such as unwelcome or uninvited into applying its meaning.  In this case, as the claimant had instigated the conduct it could not be regarded as being unwanted and the claim failed.

You can read the case in full here.