Right to work checks in construction: who carries the risk?

Right to work compliance is no longer just a matter of checking your own workforce. Changes introduced on 1 October 2026 may expose construction businesses to liability for illegal working further down their contractual chains.

The worker’s direct employer remains primarily responsible, but businesses further up the contractual chain may also face liability. Our employment team’s article, Extension of right to work checks beyond employees from 1 October 2026 | Brodies LLP, explains the wider changes.

Here, we look at what extended liability means for construction businesses, their contracts and site processes.

When does extended liability arise?

For construction businesses, the most relevant scenario is subcontracting. Extended liability applies where:

a main contractor contracts to provide work or services to a third party and subcontracts all or part of that work to another employer, who engages workers or employees to carry it out;
an online matching service matches a service provider with a client or customer, and they enter into a contract for work or services; or
an employer employs an individual to provide work or services under a contract that permits the individual to use a substitute.

Construction projects often involve several tiers of subcontractors. If an illegal worker is engaged at any tier, businesses further up the contractual chain may now be held liable.

The worker’s direct employer remains primarily responsible. The Home Office has said that it will only look upstream where that employer cannot be identified, and that it does not normally pursue more than one business for the same illegal worker. This describes its stated enforcement approach; how that approach will operate in practice remains to be seen.

What we do know is that Home Office construction enforcement visits reportedly increased by 150% in the first half of 2026.

Are clients and property owners in scope?

“End users” are not caught by the extended liability regime. These are parties “who commission or purchase work or services, where they are not under a contract to provide those work or services onwards to a third party as part of a chain of contracts”. A property owner appointing a main contractor to construct or refurbish a building will therefore not generally be caught. However, an owner that is itself obliged to deliver works for someone else—for example, under an agreement for lease—may be within scope.

Is there any defence?

Yes. A business can rely on a “statutory excuse” if it has complied with the “prescribed requirements” set out in the Home Office guidance.

Key requirements include the following: see the Home Office guidance for full details.

Contracts: a written statement must be in place before work starts. It can include terms that:

require the subcontractor to carry out checks;
bar further subcontracting without consent and flow obligations down the chain;
permit audit and enforcement, including suspension or termination; and
require cooperation with any Home Office investigation.

Identity verification: proportionate systems and processes must confirm that the person carrying out the work or services is the person whose right to work was checked.

Systems may include workplace passes, facial verification, biometric systems or attendance management systems.
Verification must take place at set intervals. The Home Office recommends at least once in any 24-hour period or shift of work.
A third party’s system may be relied on if reasonably verified.

None of this works on paper alone: procurement, commercial and site teams all need processes that match what the contract requires.

Does the regime apply to existing projects?

The new rules apply from 1 October 2026 with no general grace period. For extended liability, the relevant date is when the contract was entered into, so a pre-existing contract is not caught simply because work continues after that date, though a substantial variation afterwards could bring it into scope.

Checklist

Assess which arrangements are in scope, taking account of when contracts were entered into and any substantial variations after 1 October 2026.
Map subcontracting and labour-supply chains and establish who carries out the relevant checks at each tier.
Review standard-form and live contracts. Where the requirements apply, ensure the written statement, flow-down, audit, cooperation and enforcement terms are in place.
Align procurement, mobilisation, right to work checking and site-access processes with the contractual requirements.
Put proportionate identity verification in place and keep evidence that it works.
Record and retain evidence of right to work checks, and complete follow-up checks on time.
Train procurement, commercial and site teams.

For construction businesses, compliance can no longer be viewed solely through the lens of direct employment. Understanding labour supply chains, updating contractual protections and ensuring site processes operate effectively in practice will all be critical to reducing risk under the new regime.