Do you use contractors, freelancers or agency workers? Right to work checks expanding from 1 October

These changes will mean that responsibility for RTW compliance is no longer limited to traditional employment. A wider range of working relationships, including labour supply chains and subcontracting will now be captured.

The updated rules also increase the risk of substantial penalties of up to £60,000 per illegal worker.

Who is affected?

The existing Right to Work Scheme has applied only to individuals classified as employees, meaning that employers using workers or self-employed individuals have not had a legal responsibility to check whether those individuals are entitled to work in the UK.

The new rules extend this scope to a broader range of business arrangements where workers are not directly employed or engaged by a business. For example, someone supplied through a subcontractor or agency.

Therefore, your organisation may be affected if you use:

• Non-employees engaged under a ‘worker’s contract’.
• Individual contractors.
• Agency workers and other labour supplied through contractual chains, including subcontractors operating under the Construction Industry Scheme (CIS).
• Gig economy ‘workers’ and platform-based service providers, and any substitutes they use.
• Casual, temporary and zero-hours workers.

In these scenarios, your business will be responsible for carrying out the required right to work checks on any individual personally providing the service, even if you are not their direct employer.

Which industry sectors are most at risk?

While all employers should review how the changes impact their business, the greatest impact is likely to fall on those who rely heavily on flexible workforce models or have complex supply chain arrangements. This includes sectors such as:

• Construction
• Recruitment and labour supply
• Hospitality
• Logistics and transport
• Social care
• Facilities management
• Platform-based services

How will Right to work checks be conducted?

There is no change in the existing checking methods and businesses can continue to use one of the recognised Home Office routes:

• a Home Office online check using a share code;
• a manual check of acceptable documents where permitted;
• checks completed through an approved Right to Work Digital Verification Service Provider (DVSP) for eligible individuals; or
• verification through the Employer Checking Service where required.

The Home Office recognises that, in a long supply chain, businesses may not have direct contact with every worker in that chain to be able to carry out right to work checks. They are able to issue a ‘written statement’ to be included in the relevant contracts to make clear who is responsible for carrying out right to work checks. If the arrangements satisfy the Home Office requirements, the party with the legal responsibility for checking right to work can rely on those contractual arrangements to establish a statutory excuse, in the event that illegal working arises.