On 29 July 2026, the Certification Officer confirmed in Flaherty v UNISON D/9/26-27 that the union breached its rules by permitting a trans woman to stand as a candidate for election to a seat on its National Executive Committee (NEC) that was reserved for women under the positive action provisions of the Equality Act 2010. Marianne Tutin represented the successful complainant, Mr Flaherty, before the Certification Officer.

UNISON’s 2025 NEC elections included two contested disabled members’ seats: one reserved for a woman and one a general seat. Four candidates were nominated for the woman’s seat, including a trans woman. On 16 April 2025, the Supreme Court gave judgment in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 (For Women Scotland), confirming that, for the purposes of the Equality Act, the terms ‘man’ and ‘woman’ refer to biological sex. UNISON did not take any steps to prevent the trans woman from remaining as a candidate. The candidate was not elected, but received a material share of the vote.

Mr Flaherty challenged the union’s decision. After receiving no response from UNISON, he brought a complaint before the Certification Officer under s.108A(2)(a) TULRCA 1992, complaining that UNISON had breached its rules governing the election of officers by allowing an ineligible candidate to stand, thereby potentially preventing or deterring eligible candidates from standing. UNISON argued that the complaint was academic or hypothetical because a biological female had ultimately been elected to the seat.

The Certification Officer upheld Mr Flaherty’s complaint. He concluded that, following For Women Scotland, only biological women were eligible to stand for seats reserved for women under the Equality Act’s positive action provisions. The eligibility requirements had to be satisfied throughout the nomination and election stages. By permitting a trans woman to stand as a candidate for a seat ring-fenced for a biological woman, UNISON had acted in breach of its rules.

Although the Certification Officer declined to make an enforcement order, as there was no continuing threat of a further breach and a re-run of the election was not necessary, he noted that UNISON had (during the proceedings) accepted the legal effect of For Women Scotland in respect of its seats introduced under the positive action provisions of the Equality Act and confirmed it was revising its procedures to ensure compliance before its next NEC elections in 2027.

The wider significance of the decision lies in the Certification Officer’s invitation for trade unions and employers associations to review their rules, procedures and guidance to ensure compliance with For Women Scotland, if they have not done so already. That recommendation is likely to have implications across the trade union movement. Many unions have reserved seats based on sex that were introduced under the Equality Act’s positive action provisions. The decision makes clear that those arrangements must be interpreted and operated in compliance with the Supreme Court’s judgment.

The decision can be found here.

Marianne Tutin was instructed by Conrathe Gardner LLP.