In October, the Home Office published an updated version of its “Employer’s guide to right to work checks”. The guide introduces significant changes to the checking regime and expands the scope of the checks that employers are required to carry out.
The changes represent one of the most significant expansions of the right to work checking regime in recent years. In addition to widening the categories of individuals in relation to whom checks should be carried out, the new guidance introduces “extended liability” provisions. These new rules could, in certain circumstances, expose organisations to penalties for illegal working further down a contractual chain. Employers should therefore review both their recruitment processes and commercial contractual arrangements to understand the potential impact.
The latest version of the Home Office guide can be found here: https://www.gov.uk/government/publications/right-to-work-checks-employers-guide
When Do the New Right to Work Rules Apply?
The new guide came into force on 1 October 2026 and applies to checks carried out on or after that date.
Do Existing Right to Work Checks Need to Be Repeated?
No. Checks should comply with the version of the guide that was in force at the time of the check. Previous checks do not need to be re-run to comply with updated versions of the guide.
Why are checks required?
Checks form part of the wider regime to prevent illegal working in the UK. Those who employ illegal workers in the UK can be liable for civil penalties of up to £60,000 per illegal worker. In serious cases where an employer knows or has reasonable cause to believe that an illegal worker has been employed, possible penalties include imprisonment and an unlimited fine.
If an employer carries out a valid right to work check on an individual in accordance with the requirements of the applicable guide, they will secure a “statutory excuse” against a civil penalty if that individual turns out to be an illegal worker. For new hires, a check must be carried out before Day 1 of employment for a statutory excuse to be secured.
The expanded scope of the checking regime
Under previous versions of the guide, checks were only required for individuals who were in direct employment relationships. However, the category of individuals covered by the checking regime has been significantly expanded. Checks must now be carried out for those working (i) under a contract of employment, (ii) under a worker’s contract, (iii) as an individual sub-contractor or (iv) via an online matching service providing the details of an individual who is a service provider to potential clients or customers.
In practice; the new guide will require checks for individuals on short-term assignments, zero-hour or casual workers, those who work via employment agencies and various “gig economy” workers. The guide expressly states that it is not intended to apply to individuals running their own business – either in their own name or through a personal service company – and who make contractual arrangements directly with their customers.
For example; individuals or businesses that hire a self-employed plumber directly to fix a leaky tap would not be required to carry out a check. However; if that plumber is sourced via an online matching service, the online matching service would likely be required to check the plumber’s right to work.
What Is Extended Liability and When Can It Apply?
Extended liability is an entirely new concept under the guide. Organisations at the top of a supply chain could therefore potentially be liable for illegal worker penalties, even if they have no direct contract or contact with the individual in question. This will typically apply where the Home Office cannot identify the entity that has a direct contractual relationship with the illegal worker.
Extended liability can potentially apply in three scenarios:
- Where A is under a contract to provide work or services to B, and A enters into a sub-contract with C who employs worker(s) to carry out the work or services required by A to fulfil the contract with B. This sub-contracting situation is common in sectors like construction, where developers often engage specialist contractors to carry out specific works.
- If an online matching service matches a service provider with a client or customer to provide work or services, and the service provider enters into a contract with the client or customer.
- Where an organisation engages an individual to provide work or services, and the contract permits that individual to substitute their work or services to be carried out by another individual in their place.
Extended liability will not apply to every business that purchases work or services from another business. End users, clients and customers who (i) purchase services for their own internal use and (ii) do not provide those services onwards to third parties as part of a contractual chain will not be subject to the extended liability provisions.
The extended liability rules are complex and will likely require organisations to carefully consider and analyse their contractual arrangements to assess if the extended liability provisions may apply – either now or in the future.
Like with individual checks, it is possible for organisations to secure a statutory excuse against potential extended liability. In order to secure a statutory excuse, contractual arrangements must comply with prescribed requirements relevant to the scenario in question. This could include the inclusion of mandatory contractual terms, controls on the use of a substitute to provide services and/or proportionate identity verification systems being implemented.
Extended liability only applies to contractual arrangements entered into from 1 October 2026 onwards. Arrangements entered into before this date will not be subject to the extended liability regime simply because the contracts continue after 1 October 2026. However, it would nevertheless be wise to assess current arrangements to establish whether extended liability rules may apply on renewal.
Practical Steps Employers Should Take Now
There are a variety of steps that organisations can take to ensure compliance with the new guide. These include:
- Carrying out a workforce audit to ensure that (i) appropriate checks are on file for current employees, (ii) any risk areas are identified and (iii) appropriate action can be taken;
- Reviewing and updating recruitment processes so that checks are carried out for those individuals who were previously out of scope of the checking regime;
- Identifying the types of contractual arrangements that could potentially be caught by the new extended liability rules and auditing existing contractual chains; and
- Updating and amending template documents to include the relevant safeguards required to secure a statutory excuse against extended liability both upwards and downwards in contractual chains, and ensuring that those systems operate effectively in practice.
The updated guidance extends right to work obligations beyond traditional employment relationships and introduces new risks for organisations operating through contractors, sub-contractors and certain online platforms. While existing checks and contractual arrangements will generally not be affected retrospectively; employers should take this opportunity to review their workforce, recruitment procedures and supply chain arrangements. Early consideration of the new requirements will help organisations minimise risk and ensure they are well placed to maintain compliance going forward.
If you would like to discuss the New Right to Work Check Requirements further, please get in touch with a member of our team.
