On 1st October 2026, the Right to Work regime changed significantly. It is important for all employers to understand these changes, but especially those who hold a sponsor licence.
What are the Changes?
There are two broad changes;
1. Expansion of which workers have to be checked
Previously, the civil penalty regime only applied to an employee/employer relationship. It did not cover casual workers or individual contractors.
This has been expanded significantly. An ‘employer’ is anyone who employers an individual;
- Under a contract of employment
This covers those who work for you on a regular basis, whose work you direct, who receive regular pay, and who have to do the work themselves.
- On a worker contract
These are people who agree to work for you personally but is not an employee. This would include agency workers or sessional workers who do work for you on an occasional or irregular basis. Agency workers would be engaged by the agency on each assignment and the responsibility for the check lies with the agency.
- As an individual subcontractor
The example provided in the guidance is of a person who provides food delivery services by logging into an app for a delivery platform. They log into the app when they want to work, can accept delivery requests that they want to undertake and gets paid per delivery. In this scenario, the delivery platform is the employer.
- Who operates an online matching service providing details of an individual who is a service provider.
The example provided is of an online matching service which that matches individual cleaners with householders. The cleaners must carry out the cleaning personally. In this case, the matching service is the employer.
The scheme is not intended to catch individual householders or businesses who are the end users of a service. If a household called a local self-employed plumber to fix a tap, they are not required to perform a right to work check. Similarly, if a business contracts with a self-employed consultant who works through a personal services company on a particular project, they are also not intended to be in scope.
However, this change does extend the range of individuals for whom your business needs to conduct a right to work check.
2. Extended Liability
These provisions potentially extend liability for a civil penalty beyond the employer of an individual worker. It allows liability for a civil penalty to be passed up a chain of contractors and sub-contractors.
Responsibility for carrying out a check will always remain with the ‘employer’ as defined above. However, in cases where that employer cannot be identified, the extended liability provisions can allow the liability to pay the penalty to be passed on to other contractors in the chain.
One clear example of this is on large construction contracts. The lead construction company contracted to complete the building project may sub-contract elements to other companies, who in turn sub-contract to self-employed contractors or other companies. On a large building project, there could be dozens of contractors on site.
Often in in such cases, individual workers are not clear who exactly is their ‘employer’. There may be clear contractual agreements at the top of the chain, but much less clear paperwork towards the bottom.
In other cases, an individual sub-contractor may be permitted to send a substitute to carry out work on their behalf. For example, some food delivery platforms allow individuals to send someone else to perform deliveries for them. In such cases it may be very difficult for the Home Office to establish who a substitute is working for.
If the employer cannot be identified from evidence available, then liability may be passed up the chain. The apparent aim of this is to encourage the larger companies at the top of the chain to take a greater interest in illegal working happening further down.
How can Companies in a Chain of Contracts Protect Themselves?
Companies in a chain of contracts can protect themselves by taking three key steps;
- They must include certain contractual terms in their contracts with others further down the chain. The specific clauses go beyond the scope of this post, but cover issues such a requiring sub-contractor to carry out right to work checks, the right to carry out audits and preventing further sub-contracting without prior permission.
- They must have substitution controls. Where an individual worker can send a substitute, there must be controls in place to ensure that a right to work check is done on any substitute before the work takes place. Responsibility for this lies with the employer of the original worker. For example, if a delivery driver working through an online platform can send a substitute to do deliveries, the platform must carry out the right to work check on any substitute before they do any work.
- Identity verification. There must be systems in place to make sure that the person performing the work is the person whose identity was checked. This could include issuing photo-id cards, facial recognition technology or biometric attendance management. It must be re-checked at regular intervals.
These provisions cover all contractors and sub-contractors in a chain. They will therefore impose a significant burden on small and medium sized businesses who may not have the resources of the largest companies.
It also creates significant ambiguity. For example, the guidance requires ‘proportionate’ systems for re-verifying identity, but there is little guidance on what a proportionate system would be in any individual case. The guidance also provides example of arrangements that ‘may’ be in scope
This is of key importance. A civil penalty can now be £40,000 or a first offence or £60,000 thereafter. A small number of individual workers on a large project could amount to huge potential liability, and could push some into bankruptcy.
All checks must take place before an individual starts work. This is therefore something that businesses should address as a matter of urgency.
How we can help
OTB Legal has a dedicated business immigration team who can provide advice on the right to work regime.
