From 1 October 2026, liability for right to work checks will be extended to include sub‐contractors, agency workers, and casual and temporary workers, and the Government has published guidance setting out what employers need to do to be provided with a ‘statutory excuse’ against extended liability if found to be employing someone illegally.
Under the new guidance, employers must have the following in place for workers who they are not in a direct contractual relationship with
- Contractual terms and conditions – Before work commences, there must be a written statement in place incorporating a number of specific terms and conditions, which include requiring the other party to carry out prescribed right to work checks on any individual employed and prohibiting further sub-contracting of the work without prior written consent.
- Substitution controls – Where a contract permits substitution, processes must be in place to ensure that a prescribed right to work check is carried out on any substitute before work takes place.
- Identity verification – There must be proportionate systems to ensure that the individual carrying out the work is the same individual on whom a right to work check has been conducted, which may include workplace passes, facial recognition technology or biometric systems.
There are a number of options available for ensuring individuals are legally entitled to work in the UK, and employers conducting right to work checks in accordance with the guidance will receive a statutory excuse, which protects them from liability in the event that they are later found to be employing someone illegally. Without a statutory excuse, employers face significant penalties, which could be up to a maximum of £60,000 per worker.