Following on from our recent article on the Right to Work checks, significant changes are due to come into force on 1st October 2026. These changes will mean that not only will ‘traditional’ employers be required to carry out checks, but now businesses that use contractors, agencies, platform workers and sub-contractors will be required to carry out these checks. The liabilities for civil penalties will be extended accordingly.
The term “employer” will be extended beyond the normal contractual arrangements. The new definition will include businesses who employ persons under a contract of employment, engage individuals under a worker’s contract, engage individuals as sub-contractors and those who operate an online ‘matching’ service (under which individuals are introduced to or connected with service providers, users or clients). The terms “self-employed” and “contractor” will not be conclusive – instead, the Home Office will adopt a practical approach to see how the work is arranged, supplied and performed in reality.
Attached to this, civil penalties will also be extended. Three scenarios are envisaged under the new guidance.
In contracting chains, where a business is contracted to provide work or services, which then uses a third party to supply the workers who deliver that work or service under the contract. As an example, a building developer using sub-contractors to deliver building services. The developer will be treated as the “employer” for Right to Work check purposes and faces fines if the workers are working illegally.
Online matching services connecting service providers with clients or service users, and where the service provider contracts with the client or user directly. The matching service could be the “employer” for Right to Work purposes.
Where a business engages an individual to provide work or services and their contract allows that individual to substitute another person to do that work. As an example, a food delivery platform allowing riders to send another rider or friend to deliver the food on their behalf. The platform can be the “employer” of the substitute who actually performed the task.
It should be noted that the extended liability only applies where there is a contractual responsibility to supply, arrange or deliver the services as part of a chain.
Liabilities can arise even where the business is not the “employer” – the risk now extends to procurement, operations and platform businesses, which now face fines of up to £60,000 per illegal worker. Attached to the financial sanction is the adverse publicity (appearing in the Home Office list of non-compliant employers), reputational damage, reactions of business stakeholders and impact on business operations.
Where extended liability applies, the HO will look at the contractual arrangements to assess whether the three prescribed requirements have been met. If so, they would have a “statutory excuse”. To establish this defence, the business must show compliance before the work or service began and be able to prove it.
Before contracts start, organisations must have written statements with agencies, contractors, sub-contractors and service providers, which require RTW checks to be conducted on anyone personally carrying out the work, and require more checks if the work is further sub-contracted. In these circumstances, businesses should have extensive and thorough service agreements.
Where individuals are able to send someone else to carry out the service on their behalf, employers must have appropriate mechanisms in place to check the legality of the substitute before any work/service starts. Where a substitute was not permitted but occurred anyway, the HO will assess whether appropriate checks were carried out on the original worker (given the risk of “impersonating”).
Businesses must perform identity checks to verify that the person who carried out the work was the one whose identity was checked. Acceptable identity checks include photo ID cards, passports, driving licences and facial recognition through the RTW digital verification service provider. Although businesses can rely on identity checks carried out by others in the chain, they are still expected to take “reasonable steps” to satisfy themselves that the checks were carried out and that they were/are appropriate.
This article is intended for guidance purposes only, and businesses should seek professional advice before embarking on recruitment practices. Getting it wrong may well lead to significant financial sanctions.
