The UK Government recently announced plans to extend the scope of right to work checks to workers.
Who do right to work checks currently apply to?
Currently employers can be liable for a civil penalty if they employ someone under a contract of employment or contract of apprenticeship who does not have the right to work in the UK. Employers have a statutory excuse to such a penalty if they have carried out a suitable right to work check in accordance with Home Office guidance. For this reason, many employers typically only carry out right to work checks on employees and apprentices.
However, some employers will already carry out right to work checks on 'workers' in addition to employees because:
- The Home Office have in some cases taken a broad view of who is engaged under a contract of employment for these purposes. Therefore it can reduce risk for employers to also carry out checks on some workers.
- The Home Office guidance on right to work checks encourages employers to check the right to work status of individuals who are not employees, stating that there are compelling reasons for doing so (for example for reputational reasons and to avoid operational disruption). The guidance also suggests that some businesses may want to require evidence that third parties, such as the labour providers supplying staff, have carried out suitable checks.
- Employers who have a sponsor licence also have a duty to carry out right to work checks under their sponsor duties. The Home Office guidance states that employers who have a sponsor licence must also carry out checks where the worker is not a 'direct employee'. This applies if the employer is sponsoring the worker but they do not have the status of an employee (for example someone who is an LLP member may be sponsored in some cases but would not be an employee). This requirement applies as a result of the sponsor licence duties (rather than through the legislation on illegal working).
What changes are proposed?
On 30 March 2025 the Home Office announced that right to work checks are going to be extended in scope to require employers to carry out checks on 'gig economy and zero hours workers' in addition to those who are employees. The press release highlighting this change is here.
It is unclear what the timescale is for implementing this change. Employers will need to revise their right to work processes and written procedures to take account of these changes once further details are known. Employers who rely heavily on such workers will need to consider what processes they need to comply – especially for workers who are engaged for short periods regularly. It remains to be seen whether checks will need to be carried out in advance of each assignment.
More information
For further detail on any of these changes or to discuss right to work checks, please contact Elaine McIlroy, Erin McLafferty or Gregor Craig-Murphy from Brodies Employment and Immigration team.
