Revised employer guidance
The Home Office has published revised draft Right to Work guidance ahead of significant changes to the illegal working regime taking effect on 1 October 2026.
The revised draft follows the version first published on 16 July and reflects stakeholder feedback. It sets out the regime that will apply from 1 October 2026. Until then, employers remain subject to the existing Employer’s Guide to Right to Work Checks dated 26 June 2025.
From 1 October, Right to Work responsibilities will extend beyond conventional employees to a wider range of working arrangements, including certain workers, individual subcontractors and online matching services. New extended liability provisions will also apply in certain contractual chains.
The revised draft gives employers more detail on how those rules are intended to operate in practice and where the boundaries sit.
Right to Work changes from 1 October 2026
The changes originate in section 48 of the Border Security, Asylum and Immigration Act 2025.
Employers are already familiar with carrying out Right to Work checks on employees to establish a statutory excuse against a civil penalty for illegal working.
From 1 October, the statutory regime becomes wider.
It can apply to individuals engaged under a worker’s contract, individual subcontractors and certain service providers introduced through online matching services, as well as employees.
A new extended liability regime will also apply. In some circumstances, a business that does not directly employ the individual carrying out the work may still be exposed to a civil penalty unless it has complied with the prescribed requirements for the contractual arrangement.
For newly covered working arrangements, the expanded civil penalty regime applies where the relevant employment or engagement starts on or after 1 October 2026. Where extended liability applies, the prescribed contractual and operational requirements must be in place before the relevant work or services begin.
Why has the guidance changed again?
The Home Office first published draft guidance on 16 July. The July draft left some uncertainty around how the expanded regime would apply to common outsourcing, contracting and supply-chain arrangements.
The revised guidance addresses a number of those points.
The 11 September version identifies the main changes following stakeholder feedback as:
- greater clarity on when working arrangements are and are not within the scheme;
- further clarification of key terminology and concepts;
- confirmation that Right to Work checks can be delegated, with the same delegation principles applying across the different types of check; and
- revised examples and supporting material covering different working arrangements.
The most useful addition is a new section on assessing working arrangements.
Substance over labels
The September guidance gives a clearer indication of how the Home Office expects businesses to assess working arrangements.
Put simply, the description used by the parties is not enough on its own. Businesses are expected to consider the substance of the arrangement and how it operates in practice.
The guidance directs attention to questions such as:
- are individuals personally carrying out the work?
- who engages, supplies or arranges those individuals?
- who is contractually responsible for delivering the work or services?
- is the customer procuring individuals or buying a defined service or outcome from an independent business?
- is there a contractual chain?
- who determines, approves or replaces the individuals carrying out the work?
- is substitution permitted or controlled?
- do the contractual documents reflect what happens in practice?
No single factor determines the position. Describing someone as “self-employed”, a “contractor” or a “supplier” does not take the arrangement outside the Right to Work regime.
Equally, the new rules do not mean that every individual working somewhere within a supplier network needs to be checked by the end-client.
Important lines now drawn
The revised examples are one of the more useful parts of the September guidance.
A genuinely self-employed plumber who advertises to the public, works for multiple customers and operates an independent business is outside the scheme.
Likewise, where a graphic designer contracts with a client through their own personal service company, the guidance says the client does not need to carry out a Right to Work check simply because that individual ultimately delivers the services.
The distinction is between engaging or receiving the services of an individual and purchasing a genuine service from an independent business.
That distinction is particularly relevant to outsourced services.
The guidance also gives examples showing that an end-client will not automatically acquire extended liability simply because individuals employed by another business carry out work on its premises.
The contractual structure and what each party has agreed to provide remain central to the assessment.
Delegation has also been clarified
The revised guidance also confirms that the practical activity involved in carrying out Right to Work checks can be delegated. That will be relevant to employers using centralised compliance teams, recruitment providers, outsourced onboarding functions or technology-supported checking processes.
Delegating the check does not delegate the legal responsibility. The employer must still ensure that the prescribed process has been followed and that a valid statutory excuse has been established.
Employers should therefore be clear on who owns the process, how errors are identified, what evidence is retained and how compliance is monitored.
Extended liability remains
The revised guidance has not removed the supply-chain provisions introduced in the July draft. Where extended liability applies, an organisation seeking to establish a statutory excuse must comply with the prescribed requirements relevant to the arrangement.
Depending on the structure, these can include specified written contractual terms, controls over further subcontracting, audit and enforcement provisions, substitution controls and proportionate identity verification.
Assurances from employers or service providers can form part of the supporting evidence, but they do not replace the prescribed requirements.
The business should be able to show that the arrangements operate effectively in practice and that it has taken reasonable and proportionate steps to satisfy itself that Right to Work requirements are being met.
A standard warranty in a supplier agreement will not, on its own, be enough. Supporting evidence may include contracts, audits, assurance information and compliance reviews. The level of assurance required will depend on the nature, scale and risk of the arrangement.
What should employers do now?
With 1 October approaching, employers should review how work is actually carried out for the business and identify which arrangements may fall within the expanded regime. The assessment needs to go beyond payroll and the conventional employee population.
Employers should identify who is directly engaged, where labour is supplied through another party, where services are purchased from an independent business and where contractual chains, substitution rights or further subcontracting are involved.
Once those arrangements have been identified, the business can determine which fall within the expanded regime, which may create extended liability and which remain outside it.
Immediate priorities should include:
- identifying new engagements and working arrangements starting from 1 October;
- reviewing Right to Work processes for newly in-scope workers and individual subcontractors;
- identifying contractual chains that may give rise to extended liability;
- reviewing supplier terms, subcontracting controls, audit rights and compliance assurance;
- reviewing substitution arrangements and the controls applied where another individual performs the work;
- recording the basis on which material workforce and supplier arrangements have been treated as in or out of scope; and
- ensuring HR, procurement, legal, operations and contingent workforce teams are working from the same analysis.
DMS Strategic Insight for Employers
Employers should now review how work is actually carried out for the business and identify which arrangements may fall within the extended Right to Work regime from 1 October.
The starting point is the arrangement itself: consider who has engaged the individual, who is supplying the labour, what each party has agreed to provide and whether the business is receiving the services of an individual or buying a genuine service from an independent business. This detail will be critical since the new rules do not apply simply because an individual is described as a contractor or because work is delivered through another business; the contractual terms and the way the arrangement operates in practice both need to be considered.
Extended liability also means employers may need to look beyond their direct engagements. Where work is provided through a contractual chain, the business should establish whether the prescribed protections are required and whether the parties responsible for Right to Work checks are meeting those obligations in practice.
For most organisations, the work will require input from HR, procurement and legal because relevant arrangements may sit across employment, supplier and service contracts. The aim should be to reach a clear position on each material arrangement: whether it falls within the regime, who is responsible for the check and whether any additional contractual protections are required before work starts.
Need assistance?
Ahead of the October changes, we are running dedicated live webinars for employers on what the new regime involves and how to prepare. Book your free place here. For advice and support tailored to your organisation, or to discuss right to work training and development for those in your organisation dealing with recruitment and onboarding, speak to us.
The updated guidance can be viewed here >>
