How will new Right To Work checks affect employers & contractors?
In line with legislation contained in the Border Security, Asylum and Immigration Act 2025 the scope of employers required to prevent illegal working in the UK was broadened, and sanctions for non-compliance applied beyond traditional employer-employee relationships to a wider range of working arrangements.
Under s48 of the 2025 Act references to “employer” includes engaging an individual under a work contract, engaging an individual sub-contractor, and through an online matching service providing details of an individual who is a service provider to potential clients or customers. In these circumstances, the government considers an employer is in a position to prevent illegal working, and should establish a statutory excuse by carrying out a prescribed right to work check.
The legislation introduces the concept of “extended liability”, which applies where:
- a person is under a contract to provide work or services to a third party and enters into a contract with another employer providing workers to fulfil that contract
- an online matching service provides details of a service provider to clients or customers, and the service provider enters into a contract with a client or customer, or
- an employer employs an individual to provide work or services, and the contractual arrangements allow the individual to substitute their work or services to another individual.
This means the person contracted to provide work or services to a third party, an online matching service or the employer in the case of a substitution arrangement, may be treated as employing any individual who personally provides the work or services.
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So who is caught by these new provisions, beyond the traditional employer-employee relationship, which come into force from 1 October 2026?
A few examples are useful.
A. An individual registered with a temp agency is supplied by that agency to work in its clients’ bars and restaurants. The temp agency pays the worker. It is the temp agency’s responsibility to conduct a right to work check.
B. An individual signs up to work through a delivery platform; they log in to accept jobs, and gets paid for each delivery they complete. The delivery platform is the employer and must conduct a right to work check.
C. An online matching service supplies cleaners to householders. The cleaner completes the work personally. The online matching service is the employer and must conduct a right to work check. The householder is not responsible.
D. A self-employed plumber advertises their services direct to the public and obtains work for multiple customers. A right to work check is not required here.
E. Personal service company – a graphic designer has their own limited company through which they provide services to clients. The designer issues invoices via their company for the work. A right to work check is not required in such a business-to-business services arrangement.
F. A property developer wins a contract to build new homes. The developer engages other businesses through a chain of contracts to provide workers required to complete elements of the project, including laying foundations and bricklaying. The property developer is contractually responsible for delivering work to a third party and relies upon a chain of contracts to provide workers and services required to fulfil the contract. The contractual arrangements are within scope of the extended liability provisions. For the purposes of the Right to Work Scheme, the property developer may be treated as the employer of any individuals who personally carry out work or services through the relevant contractual chain and may be liable for payment of a civil penalty if an individual is found to be working illegally.
G. A logistics company is contracted by a retailer to provide warehousing services and the distribution of goods for a retailer’s own operations. The logistics company outsources the work or services to a third-party company to manage operations at the warehouses and engage workers to carry out the work. Here, the logistics company is contractually responsible to deliver work or services to the retailer and has outsourced the delivery of the work or services to a third-party company. The contractual arrangements are within scope of the extended liability provisions. For the purposes of the Right to Work Scheme, the logistics company may be treated as the employer of any individual who personally carries out the work or services through the contractual chain and may be liable for payment of a civil penalty if an individual is found to be working illegally. The retailer is purchasing warehousing and distribution services for its own operations and is not responsible for providing those services onwards to another third-party. The extended liability provisions do not apply to the retailer here.
The broad principle is that the Home Office will first look to the actual employer of an individual. If there is no employer, e.g. a self-employed sub-contractor, then the developer may be in the frame under extended liability provisions. An organisation that contracts with another business to secure labour for its own operations – rather than for the purpose of providing labour for an onward service to another entity – is not in the frame.
Extended liability rules introduce a raft of other evidence an employer might provide in order to establish a statutory excuse against illegal working. These could include:
- Contracts
- Records of RTW checks conducted on substitute workers where this is permitted under a contract
- Audit records
We see this as a potential issue for UK businesses contracting with overseas businesses who provide labour for a particular project. Some of these workers may be permitted to enter and work in the UK as visitors, so there is no easy RTW check available to the UK business. While it may be arguable that no checks are required by the UK company, if these workers are not helping it provide a service to a third party, it must be prudent to maintain a full set of contracts, sub-contracts etc in case questions are asked.
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