UK government consults on ‘revolutionary’ expansion of right to work checks

The Home Office has opened a consultation that could reshape right to work compliance. It looks at extending the checking scheme far beyond traditional employees and into a whole range of other working arrangements. If that happens, it means more checks, more administration, and a significant rise in exposure to civil penalties, all at a time when enforcement has never been tougher. We’ll speak to immigration lawyer Shara Pledger about what this could mean for employers.

The consultation is exploring how organisations carry out right to work checks on individuals who aren’t employees, including contractors, gig-economy workers, and people working through complex supply chains. That’s a major shift in scope. Employers are already dealing with higher civil penalties and more intense compliance activity, and widening the scheme would bring whole new categories of workers into the regime.

For HR, the implications land straight away. More people in scope means more checks, more training, and more time spent mapping who falls inside or outside the rules. The liability picture also expands. If the scheme widens, the civil penalty framework widens with it, exposing employers to greater risk when using non-traditional labour models or relying on third-party labour providers. And it has contractual consequences too – organisations may need to revisit agreements with agencies and suppliers to determine who takes responsibility for checks.

So let’s get a view on this. Earlier I caught up with Shara Pledger who joined me by video-link from Manchester to discuss it: 

Shara Pledger: “Up until now, it has always been quite clear cut about the responsibilities and the liabilities that businesses have in respect of right to work. It's very, very clear in current legislation, and the guidance that goes along with it, that it's about an employer/employee relationship. So where there is that natural break in a relationship between a business and a worker - for example they might be a contractor or they might be genuinely self-employed - that liability in relation to right to work doesn't arise and it might sound quite trite to say that the consultation is looking at widening that relationship and meaning that it might be the case that businesses need to check a lot more workers, but the practical reality of that is really quite significant. Needing to suddenly check the status of many, many more people will be complex both in terms of the scope and the number of people that that covers, but also how it changes the dynamic between a business and that particular individual.”

Joe Glavina: “If the scheme widens, where do you see the real pressure points for HR and compliance teams?”

Shara Pledger: “Well, the proposals that come with this consultation are genuinely quite revolutionary. Not only does it widen the scope of workers that are covered - so it brings into scope all of these groups that have traditionally fallen outside, such as self-employed people - it also creates this idea of a chain of liability. So it's not just the case that the organisation that's directly engaging with a worker will have responsibility for them. That responsibility would pass up the chain of businesses that might be working alongside that worker, having them on their premises, or receiving the benefits of their output. That creates some really interesting issues, I think, for onboarding teams and for HR teams, because it means that they need to be thinking about people that they perhaps have just not needed to think about at all before now. Not only do they now need to get a better sense of exactly who these individuals are, and what it is that they're doing, but they probably need to have some kind of direct dialog with them to actually confirm exactly what their status will be. So it really does throw up all sorts of questions for HR teams and for recruitment teams about when will right to work checks be done? Who will do them? How are they done? Are they done directly with an individual or is it through another organisation? Lots and lots of different variables to consider and, obviously, at the moment, we don't have guidance to set out exactly what will be needed.”

Joe Glavina: “So, as I understand it, from the employer’s perspective the risk moves from – ‘did we check the people we employ?’ to ‘did we check everyone who works for us in any capacity?’ Is that right?”

Shara Pledger: “That’s absolutely right. The risk that's coming for organisations here is really quite profound if you consider the number of individuals that certain groups, certain sectors, might be coming into contact with that they don't currently have a responsibility to check for. So there are some sectors that we know that are likely to be more widely affected. Infrastructure and construction are really good examples of those because they have relationships with contractors and with subcontractors which, at the moment, the right to work responsibility is probably governed by commercial relationships, so making sure that an entity that's providing labour to you is conducting those checks themselves. If we now see a change to the requirements that widens that liability and says that's not enough, you need to be running those checks yourselves, that could have a really very significant impact.”

Joe Glavina: “With the consultation still open, what should HR be doing now without going too far ahead of policy?”

Shara Pledger: “It's a really good and interesting point to raise about how far ahead should organisations be looking, because what organisations don't want to do is second guess what this new scheme is going to look like and put something in place and it turns out that that's either not necessary, or, alternatively, that it's not enough when the changes do come in. I think what's useful for organisations to do is to try and get an understanding of exactly how far and how deep this would go. How many individuals do they currently conduct right to work checks for? How many are they not currently required to have that type of relationship with because understanding the scope of people that could be covered by changes to this scheme would be really helpful when it actually then comes to putting practical measures in place. I'd also encourage organisations to respond to the consultation. It's not hugely detailed, the form to fill out. It is very much fact focused about how many checks do you currently conduct? Do you think that these changes might actually impact you in future? And this is information that the government needs to know, the Home Office needs to know, in terms of understanding exactly how a new scheme could work. So the more organisations that do you actually engage with the consultation and provide data into it really the better, hopefully, for what comes out the other end.” 

The consultation is called ‘Prevention of illegal working: Extending the Right to Work Scheme to other working arrangements’ and closes on 10 December. If you would like to submit your views you can do that by completing the online questionnaire from within the consultation document. We have provided a link to it in the transcript of this programme for you.

- Link to government consultation on changes to the right to work scheme