Right to work checks are about to apply to a lot more than employees
- HRNews
- 2 days ago
- 3 min read
What is it?
Right to work checks have always been an employee thing. You hire someone, you check before day one, you file the evidence, you diarise a follow up if their permission is time limited. Anyone genuinely self employed, engaged through an agency or working via a platform sat outside it.
That changes on 1 October 2026. Section 48 of the Border Security, Asylum and Immigration Act 2025 extends the illegal working regime well beyond traditional employment. From that date the duty covers agency workers, casual and zero hours workers, individual subcontractors, gig and platform workers, and businesses operating online matching platforms. The regulations and updated code of practice were published this month.
The Home Office has written its own definitions of employer, worker and worker's contract for these purposes, so this does not turn anyone into an employee for employment law purposes. It simply pulls the business engaging them into scope for civil penalty exposure.
Where labour comes through a chain, responsibility usually sits with whoever holds the direct contractual relationship with the individual. If that party cannot be identified, liability can move up the chain to the contracting business.
What does it mean for you?
The penalties are the reason to pay attention. Since 13 February 2024 the maximum civil penalty has been £45,000 per illegal worker for a first breach and £60,000 per worker for repeat breaches within three years. In serious cases there is criminal liability, carrying up to five years' imprisonment and an unlimited fine.
The defence is the statutory excuse, and you only get it by doing a prescribed check correctly before work starts.
✅ Map every non employee arrangement you have. Casual workers, agency staff, subcontractors, anyone you pay who is not on the payroll as an employee. That list is your October exposure.
✅ Use the right method for the person in front of you. There are three routes: a manual document check, an IDVT check through a certified Identity Service Provider for British and Irish citizens only, and the Home Office online service for non British and non Irish citizens. Since biometric residence permits were replaced by eVisas at the start of 2025, a manual check on an old BRP will not give you a statutory excuse.
✅ Check everyone the same way. Running checks only on people you assume are foreign nationals is discriminatory and will not save you from a penalty. Make it a standard part of onboarding for every single hire.
✅ Keep the evidence properly. Retain a clear, dated copy for the duration of the engagement and for two years afterwards, and diarise follow up checks before time limited permission expires.
✅ Watch the TUPE window. Where you acquire staff under a relevant transfer, the code of practice gives 60 days from the transfer date to complete first checks. There is no equivalent grace period for follow up checks.
How Lansbury HR can help.
We are auditing right to work processes ahead of October, including the contractor and casual arrangements that have never needed checking before. That covers onboarding paperwork, who does the check and how it is recorded, follow up reminders, and making sure the process is applied consistently so it does not create a discrimination problem while solving an immigration one.
If you engage anyone who is not a straightforward employee, this is worth a conversation.
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