Changes to right to work checks

What’s the law now?

Currently all employers are required to carry out checks to make sure that those they employ have the right to work in the UK. This involves either checking and copying physical documents, such as a passport, or carrying out an online or digital check.

It is a criminal offence to employ someone knowing they do not have the right to work in the UK, which can result in up to 5 years in jail and/or an unlimited fine. There is also a civil penalty if a business unknowingly employs someone who does not have the right to work in the UK. This starts at £45,000 for the first illegal worker but increases to £60,000 for subsequent illegal workers. At present it is the individual’s employer who would be liable for any penalty.

By carrying out right to work checks employers have a statutory excuse against liability if it later turns out a person has been employed illegally as the company can show they did not know this was the case.

What is changing?

From 1 October 2026 liability for illegal working penalties will be greatly extended. If a business uses subcontractors or engages temporary workers through agencies or an online work matching service, that business could be liable for a penalty if a subcontractor or temporary worker does not have the right to work in the UK. This is the case even though the business using their services is not employing the subcontractor or temporary worker.

The same liability extends to substitute workers. For example, if a company engages an independent contractor to carry out work through that contractor’s personal service company and the contract allows for a substitute to carry out the work, a business could be liable in respect of any substitute worker.

What do businesses need to do?

Businesses using subcontractors or temporary workers must include within their written terms and conditions with the provider of those individuals that, amongst other things, the provider is required to carry out the prescribed right to work checks, to keep appropriate record of the checks, and that the business has the right to carry out an audit on the provider to make sure that checks are being completed as required. The terms should also allow the business to take action against the provider in the event an illegal worker is identified and the correct checks have not taken place.

Companies should also put in place systems to check that any substitute worker who may turn up to carry out services has the right to work in the UK before any work is done by them. A system is also needed to ensure that the person turning up to the carry out the work is actually the person who has had their identify checked, for example to cover the possibility of someone else arriving for work without declaring that they are a substitute. The Home Office recommends that this is done at least once in any 24 hour period or shift of work.

Finally, companies which provide subcontracting services or temporary workers need to ensure they have updated their data protection policies to cover the possibility of needing to share, or at least allow access to, right to work information with those they provide services to.

If you need assistance checking whether your right to work processes are up to date or how to protect your business in light of these changes, you should contact Trula Brunsdon (trula@sherborneslaw.co.uk) on 01242 250039.