UK employers may face wider right to work duties under proposed Home Office code

The draft introduces a series of new definitions that broaden the scope of the right to work regime beyond traditional employment relationships. For the first time, the code formally defines ‘employer’ and ‘worker’ to include not only employees but also individuals engaged through worker contracts, as individual subcontractors or via online matching platforms.

A new definition of ‘right to work’ focuses on whether a person is permitted to be engaged in work by virtue of their immigration status, rather than solely on employment.

Shara Pledger, an expert in employment law at Pinsent Masons, said: “These definitions indicate significant expansion of the scope of who will be subject to the right to work checking obligation in future. Taken together, the changes make clear that right to work obligations are intended to extend to a much wider range of working arrangements, a shift that will require many organisations to revisit existing policies and procedures.”

“The proposed wording of the new code mirrors that proposed for legislation that would change the law on civil penalties for employing illegal workers. The publication of the code suggests that those long anticipated changes could now be on the horizon, potentially applicable from 1 October. If adopted, we will see right to work obligations extend beyond those engaged under a conventional contract of employment to encompass a broader range of working relationships,” she said.

“Businesses that engage workers in any of these ways, and which may not previously have considered themselves subject to right to work checking obligations, should take note: the draft code and proposed legislation significantly widen the pool of individuals in respect of whom checks must be conducted, and the consequences of non-compliance remain serious. However until the Home Office publishes more detailed and practical guidance on how and when right to work checks will be carried out in future, there remains some uncertainty around how the liability for illegal work will develop and the steps businesses must take to minimise risk, especially in cases of non-direct engagement of workers.”

The draft also replaces references to identity service providers with a new framework for ‘digital verification services’, reinforcing the continued move away from physical documents. Employers will be required to use certified digital providers when carrying out digital checks.

Other changes strengthen guidance on avoiding discrimination. The Home Office clarified that employers should not treat candidates less favourably because they have time‑limited permission to work, including where this is evidenced via an eVisa. It also addresses situations where applicants are temporarily unable to generate an online share code because of technical problems.

In addition, the code goes further than before in setting out employers’ responsibilities for preventing discriminatory behaviour by staff conducting right to work checks. It describes a documented and actively implemented equality policy, alongside training, as a reasonable step to limit liability.