Right to work checks are changing – what do businesses need to do before October?

By Megan Summers and Shannon Willett

From 1 October 2026, employers will have to comply with extended right to work checks as the government doubles down on the prevention of illegal working in the UK. Details are contained in its draft Code of Practice on Preventing Illegal Working, alongside updated draft guidance for employers.

The proposed changes extend the current right to work regime beyond the employment relationship,  and significantly increase the number of organisations potentially exposed to civil penalties.

What is changing? 

The regime introduces two key changes:

1. An extended right to work regime

Under the current scheme, employers are only required to carry out right to work checks on their employees. From 1 October 2026, key changes are as follows: 

• In addition to checking their employees, organisations will also need to carry out checks on zero hours and casual workers, including ad-hoc shift workers and bank staff. 

• Online matching services that connect service providers with potential customers will also be required to carry out checks on individuals they engage or supply. 

Importantly, the expanded regime is not intended to extend to individuals operating either in their own name or through their own company, who contract directly with clients or customers to provide goods or services.

These changes mean organisations and working arrangements which were not previously caught by the right to work regime will now be. In practice, this means more businesses will need to carry out right to work checks, including in respect of individuals who are engaged outside a traditional employment relationship.

2. The introduction of “extended liability”

The new scheme also introduces “extended liability”, under which responsibility for right to work compliance may, in certain circumstances, extend beyond the organisation with the direct contractual relationship with the employee or worker.

The extended liability provisions may apply in situations where:

• a party contracts to provide work or services to a third party and then engages another business to supply the workers to deliver those services;

• an online matching service connects service providers with customers or clients; or

• a party contracts with an individual who is permitted to provide a substitute to perform work or services on their behalf.

Importantly, the guidance makes clear that these provisions do not apply to every commercial supply arrangement and will not generally apply to clients or end-users purchasing services for their own operations.

Establishing a “statutory excuse”

Under the current regime, employers who carry out a valid right to work check on an employee have a defence, known as a “statutory excuse”, if it later transpires that that person did not have the right to work. Where an employer does not have a statutory excuse, they may be required to pay a civil penalty of up to £60,000 for each employee who does not have the right to work.

Under the new regime, there are two routes for establishing a statutory excuse: 

• by carrying out a right to work check in the usual way; or

• by complying with certain “prescribed requirements”. 

The applicable route will depend on whether there is a direct contractual relationship between the organisation and the individual, or whether the extended liability provisions (see above) apply.

Where the organisation has a direct contractual relationship with the individual, responsibility for carrying out the right to work check will stay with that organisation, and the process remains broadly similar.

Where extended liability applies and the Home Office cannot identify the employer, liability may extend further up the supply chain. To protect against potential liability, organisations caught by extended liability will need to:

• include certain contractual provisions in their contracts with sub-contractors, for example requiring the direct employer to carry out a compliant right to work check 

• in situations where there is a right to substitute, put controls in place to ensure no individual can provide services as a substitute before the substitute’s right to work is verified; and

• implement identity verification measures, ensuring the individual carrying out the services is the same person on whom a right to work check has been conducted. This may include, for example, requiring individuals to wear security passes.

Do the changes apply retrospectively?

The new requirements are not retrospective and only apply to new in-scope working arrangements beginning on or after 1 October 2026.

What should employers be doing now?

Organisations should start preparing for these changes now by:

• reviewing workforce arrangements to identify whether they fall within the scope of the extended regime;

• reviewing onboarding and engagement processes to ensure right to work checks are carried out where required;

• reviewing substitution arrangements and labour supply chains to understand potential exposure to extended liability;

• assessing contracts with labour providers and subcontractors to determine whether amendments are needed to include suitable right to work provisions and indemnities;

• updating policies, procedures and training materials so relevant individuals and teams are aware of the updated right to work requirements; and

• ensuring suitable and robust record-keeping processes are in place.

If you would like advice on these changes, or on how your business can best prepare, please get in touch with your usual Burges Salmon contact or a member of the business immigration team.