AB had resigned in 2023 and brought claims to the ET who dismissed them all. The sole subject of the appeal was an intimate incident with a male colleague following a Christmas party when both parties were drunk. The ET found as a fact that the conduct complained of did not take place in the way the claimant alleged: it had been instigated by her and the conduct was not “unwanted”. The ET also found AB had not been constructively dismissed and that some of the claims were out of time. She appealed to the EAT on the grounds that the ET should have considered the issue of consent and whether her drunkenness meant she was unable to give it, and they had also not accounted for it in their decision to refuse a time extension.

The EAT dismissed the appeals as it was evident the ET had carefully considered the issue of consent within the meaning of s26 of the Equality Act and they could not be faulted for failing to extend time where the argument had not been put before them and the passage of time between the incident and these proceedings meant the failings of human recall could cause prejudice.