Employment Alert – Expanded right to work check obligations now expected to come into force from 1 October 2026
What’s happening?
Employers must currently carry out right to work checks on all employees before they start working for an organisation. As part of its approach to tackle illegal immigration, the Government is expanding this right to work check regime to cover more categories of people. Until last week, the date these changes would start was unclear. Now we have a potential date to work towards – 1 October 2026.
On 15 April 2026, the Government published a draft Code of Practice on avoiding unlawful discrimination in the workplace whilst preventing illegal working. This draft Code forms part of the wider package of changes to prevent illegal working in the UK.
Whilst the draft regulations and accompanying guidance are still awaited and the government is consulting on the draft Code until 29 April 2026; the draft Code states it will apply to:
- All employment commencing on or after 1 October 2026; and
- Repeat right to work checks carried out after that date
Whilst we need to wait for the final approved Code for confirmation; it seems highly likely the new right to work check regime will be in force from 1 October 2026.
The draft Code also refers to the expanded definition of “Worker” which will be referred to as the list of people right to work checks must be carried out for in the future. It is much broader than the colloquial definition of “worker” we have been used to in the employment law world so far. As a reminder, the categories which will be covered by “Worker” under the new regime are:
- Employees;
- Workers, including causal and zero hours workers;
- Individual contractors and consultants; and
- Individuals engaged via online matching services.
What does the draft Code of Practice on avoiding unlawful discrimination while preventing illegal working say?
The draft Code itself focuses on how to avoid discrimination whilst carrying out right to work checks and recruiting individuals. It brings together the existing obligations under the Equality Act 2010 and the right to work check legislation. It clearly sets out the overlap between immigration law and employment law and the importance of considering them together when dealing with right to work issues.
The key elements from the draft Code are:
- Employers should have an Equality Policy in place covering fair recruitment practices and ensure it is applied in practice;
- Right to work checks must be applied consistently to all those covered by the updated rules;
- Employers must treat all applicants fairly when carrying out right to work checks; they must not discriminate against any individual based upon the type of right to work check carried out, their immigration status in the UK or when the check is completed.
- Individuals must not be disadvantaged when technical issues prevent online checks; and
- Employers should try and keep a job open for as long as possible, to provide all applicants with a “reasonable opportunity” to demonstrate their right to work in the UK;
- Employees with a time limited right to work in the UK should not be treated less favourably during their employment with their terms of employment and opportunities;
- Those affected by discrimination in the recruitment process may be able to bring a claim in the Employment Tribunal for discrimination. This Code can be taken into account by a Tribunal when considering such cases; and
- The Equality and Human Rights Commission can take regulatory action against an employer if they publish a discriminatory advert or instruct/induce another person to discriminate.
Full details of the draft Code can be found here: Draft code of practice for employers: Avoiding unlawful discrimination while preventing illegal working – GOV.UK.
Why is this important?
The draft Code gives us a potential date for the introduction of all the changes to the right to work check regime; 1 October 2026 (to be confirmed once the regulations, guidance and draft Code are finalised).
The Home Office has also made it clear it is drawing a clear link between the need to balance immigration compliance with employment law obligations when managing right to work issues.
It is not just intentional discrimination which may cause challenges for employers. Inconsistent right to work check practices, assumptions based on a person’s nationality or immigration status, and over‑reliance on standard checks without any scrutiny may increasingly expose employers to discrimination claims in the Employment Tribunal. These are claims which could be avoided with strong policies and practical steps.
The draft Code reiterates that the new right to work regime will increase the responsibilities for organisations engaging contractors, casual workers or platform‑based labour. This is a workforce which has traditionally been seen as lower risk and less of an admin burden for businesses. This is going to change with the new regime. Employers that are not prepared for these changes will face an increased risk of illegal working penalties, which can be up to £60,000 per illegal worker.
What should you do?
Stay up to date: We’ll be covering the expanded illegal working regime along with other recent and upcoming immigration changes in our free webinar on 20th May 2026. Click here Hiring with Confidence: Preparing for the 2026 Right to Work and Immigration Changes – Trethowans for further details and to sign up.
Audit: Carry out an audit of your zero hours, casual and agency workers, consultants and contractors and other individuals to assess how many additional checks may be required and the operational impact so you can start to plan early.
Review: Review your onboarding and engagement processes for these groups of individuals and start planning how to implement the new anticipated requirements from 1 October 2026.
Advice: If you require specific advice relating to these changes, please contact [email protected] who can put you in touch with one of our specialist immigration lawyers. All comments and information were accurate at the time of publication and may not reflect current developments. This should not be relied upon without seeking appropriate professional advice.
