UK employers are under a duty to prevent illegal working by ensuring that those that they employ have the right to work in the UK. Equally, employers are under a statutory duty not to discriminate against job applicants and workers when conducting the necessary right to work checks.
In this guide for employers, we look at how these two different obligations work together in practice, and what steps can be taken to avoid claims of unlawful discrimination when checking workers’ eligibility to work in UK under the illegal working regime.
Section A: Discrimination and Right to Work Checks – The Legal Tension Employers Face
Two statutory regimes apply at the same time and can create competing risk.
Under the Immigration, Asylum and Nationality Act 2006 illegal working regime, employers are required to carry out prescribed right to work checks and face substantial civil penalties if they employ someone who does not have permission to work. At the same time, the Equality Act 2010 prohibits discrimination in recruitment and during employment, including race discrimination connected to nationality or ethnic origin.
Right to work checks engage both regimes at once. Employers are expected to verify immigration status rigorously, yet they cannot allow those checks to become selective, assumption-based or influenced by appearance, accent or nationality. A check carried out to avoid a civil penalty can instead result in an Employment Tribunal claim.
Discrimination claims frequently arise where:
- Only certain candidates are asked for documents
- Follow-up checks are applied inconsistently
- Assumptions are made about who may require sponsorship
- Time-limited visa holders are treated less favourably
Risk arises from how the checks are applied.
The Home Office has issued a Code of Practice for employers on avoiding unlawful discrimination while preventing illegal working. Tribunals can take that Code into account when assessing whether an employer has acted lawfully. Following the illegal working regime does not shield an employer from discrimination liability, and fear of discrimination does not justify failing to carry out prescribed checks.
Employers need to perform right to work checks that satisfy both immigration law and equality law.
Section B: When Do Right to Work Checks Become Unlawfully Discriminatory?
Right to work checks are lawful and required. The legal risk arises when the way those checks are carried out treats certain applicants or workers differently because of race, nationality or ethnic origin. In practice, discrimination claims often stem from inconsistency, assumptions or blanket policies rather than deliberate bias.
1. Can you check only foreign nationals?
Employers are required to carry out right to work checks on all prospective employees before employment begins. Selecting individuals for checks based on appearance, accent, name, perceived nationality or ethnic background creates a clear risk of direct race discrimination under the Equality Act 2010.
A common mistake is to assume that British citizens do not need to be checked, while non-British candidates do. The statutory excuse against a civil penalty only arises where checks are carried out in the prescribed manner. More importantly, applying checks selectively undermines both immigration compliance and equality compliance.
Employers should apply right to work checks at the same stage of the recruitment process for every candidate, regardless of nationality.
2. Is it discriminatory to prefer British citizens?
In most circumstances, yes. Rejecting a candidate because they are not British, or because they require sponsorship, can amount to direct race discrimination unless a specific statutory exception applies.
There is no general exemption allowing employers to favour British nationals simply to reduce administrative burden. The decision turns on whether the individual has the right to carry out the work, not on nationality. Once a person establishes a lawful right to work, they should be treated in the same way as any other candidate in the selection process.
3. Can follow-up checks create discrimination risk?
Follow-up checks are required where a worker has time-limited permission to work. However, risk arises where employers:
- Single out certain nationalities for additional checks
- Apply follow-up checks earlier than required without objective reason
- Treat time-limited workers less favourably in promotion, pay or job security decisions
A follow-up check is an immigration compliance step. It should not become a trigger for differential treatment. Once an individual has demonstrated an ongoing right to work, they should not be disadvantaged because that permission is time-limited.
4. What is indirect discrimination in the context of right to work checks?
Indirect discrimination arises where a policy or practice applies to everyone but disproportionately disadvantages individuals sharing a protected characteristic, and cannot be justified as a proportionate means of achieving a legitimate aim.
Examples in the right to work context may include:
- Requiring all applicants to have five years’ continuous UK residence
- Insisting on a particular form of document where alternatives are legally acceptable
- Imposing blanket restrictions on recruiting candidates with time-limited visas
Even where introduced for administrative simplicity, such policies can create unlawful disadvantage if they exclude individuals who have a lawful right to work.
Employers need to assess not only whether a right to work check is required, but whether the way it is applied is consistent, proportionate and defensible.
Section C: How to Carry Out Right to Work Checks Without Discriminating
Right to work checks are mandatory. The compliance question is not whether to carry them out, but how to do so in a way that avoids unlawful discrimination. Employers need a consistent, documented process that satisfies immigration requirements without exposing the organisation to equality risk.
1. Apply checks consistently at the same recruitment stage
Right to work checks should be built into the recruitment process as a standard step for all candidates, normally after a conditional offer has been made and before employment begins. Conducting checks at different stages for different applicants creates unnecessary risk and can support an inference of discriminatory treatment.
Consistency is central to maintaining a statutory excuse under the illegal working regime. It also provides a clear defence if a candidate alleges that they were singled out because of race, nationality or ethnic origin.
2. Avoid assumptions about nationality or immigration status
Employers should not make assumptions about a person’s right to work based on name, accent, appearance, length of residence in the UK or perceived nationality. These assumptions frequently underpin direct discrimination claims.
Every applicant should be given the same opportunity to evidence their right to work using one of the permitted methods, whether through an online check using a share code, a digital check via an Identity Service Provider where appropriate, or a manual document check where required under the Home Office guidance.
The choice of method will depend on the individual’s immigration status. Employers cannot mandate a particular method where the law provides alternatives.
3. Manage time-limited permission fairly
Where a worker has time-limited permission to work, a follow-up check is required before the permission expires in order to maintain a statutory excuse. That requirement applies regardless of nationality.
However, once a worker has established an ongoing right to work, they should not be treated less favourably because their permission is time-limited. Decisions on pay, promotion, training or job security should not be influenced by immigration status where the individual has lawful permission to undertake the role.
Applying blanket internal policies that disadvantage workers with time-limited visas can give rise to indirect discrimination risk and should be carefully reviewed.
4. Follow the Home Office Code of Practice
The Home Office has issued a Code of Practice for employers on avoiding unlawful discrimination while preventing illegal working. This Code applies to all employment commencing on or after 6 April 2022 and to follow-up checks carried out on or after that date.
While the Code does not replace statutory obligations under the Equality Act 2010, tribunals can take it into account when determining whether an employer has acted lawfully. Employers should ensure that their recruitment policies, training materials and right to work procedures reflect the principles set out in the Code.
A documented, consistently applied process, supported by training for managers responsible for recruitment and follow-up checks, provides the strongest protection against both civil penalties and discrimination claims.
Section D: Legal Consequences of Discriminatory Right to Work Checks
Discriminatory right to work checks can expose employers to significant legal and financial risk. Liability does not arise because checks were carried out, but because they were carried out inconsistently or in a way that treated certain individuals less favourably.
The exposure does not stop at recruitment. It can affect the employment relationship and trigger scrutiny of wider immigration and sponsor compliance systems.
1. Employment Tribunal claims and uncapped compensation
A job applicant or worker who believes they have been discriminated against can bring a claim in the Employment Tribunal under the Equality Act 2010. Race discrimination claims are not subject to a statutory cap on compensation.
Where a claim succeeds, the Tribunal may award compensation for financial loss and injury to feelings. Injury to feelings awards are assessed by reference to the Vento guidelines and can be substantial, particularly where discrimination is found to be deliberate or repeated.
Tribunals will assess the evidence closely. Inconsistent document requests, internal emails or recruitment notes can be relied upon to demonstrate differential treatment.
2. Reputational and employee relations impact
Allegations of discriminatory right to work checks can damage employer brand and internal trust. Claims often arise alongside grievances or wider disputes, particularly where a worker’s immigration status becomes relevant during disciplinary action, redundancy selection or performance management.
Even where litigation does not follow, internal complaints can escalate quickly and require formal investigation. Poorly documented right to work processes make it difficult to demonstrate that decisions were neutral and compliant.
3. Civil penalties and sponsor compliance implications
Employers face parallel exposure under the illegal working regime. A failure to carry out prescribed checks can result in a civil penalty of up to £60,000 per illegal worker, depending on the circumstances and any previous breaches.
Discriminatory practices can also undermine an employer’s overall compliance position. For organisations holding a sponsor licence, inconsistent right to work processes may attract scrutiny during a Home Office compliance audit. Poor record-keeping or selective checks can raise concerns about governance and control systems.
Immigration compliance does not protect you from equality claims. Weak processes increase risk on both fronts.
4. Manager and organisational accountability
Employers are generally vicariously liable for discriminatory acts carried out by their employees in the course of employment, unless they can show that they took all reasonable steps to prevent such conduct.
This places emphasis on training, documented procedures and oversight. Where managers conduct right to work checks without guidance or apply personal judgement inconsistently, the organisation remains responsible for the consequences.
A defensible right to work framework requires clear policy, training for those involved in recruitment and follow-up checks, and regular review of practice against both immigration and equality obligations.
Section E: Building a Defensible Right to Work Compliance Framework
Avoiding discrimination in right to work checks is not achieved through a single policy statement. Employers need a coherent framework that integrates immigration compliance, equality obligations and day-to-day recruitment practice. Checks need to be applied the same way every time and capable of being justified later.
1. Align right to work procedures with equality policies
Right to work processes should sit alongside, and be consistent with, wider equality and recruitment policies. The organisation’s equality policy should expressly cover recruitment and immigration compliance activity, including document checks and follow-up processes.
Where policies operate in isolation, managers may apply one set of standards for immigration checks and another for recruitment decisions. If immigration checks and equality obligations are aligned, tribunal risk reduces and you are better placed during Home Office scrutiny.
2. Train managers and recruitment teams
Those responsible for carrying out checks should receive training on both the immigration requirements and discrimination risk. Training should cover:
- When right to work checks must be conducted
- How to apply checks consistently to all candidates
- How to avoid assumptions based on race, nationality or ethnic origin
- How to manage time-limited permission without disadvantaging workers
Employers seeking to rely on the “reasonable steps” defence in discrimination proceedings will need evidence that training and guidance were in place and actively communicated.
3. Document decisions and maintain audit trails
A defensible framework requires clear records. Employers should retain evidence of:
- When and how checks were conducted
- Which method was used and why
- When follow-up checks are scheduled
- Any decisions not to proceed with a candidate and the lawful basis for that decision
Documentation supports both the statutory excuse under the illegal working regime and the ability to respond to discrimination allegations. Inconsistent or incomplete records weaken both positions.
4. Conduct periodic internal review
Right to work compliance should be reviewed periodically to ensure that practice reflects current Home Office guidance and equality obligations. Internal audits can identify patterns, such as selective checks or inconsistent follow-up scheduling, before they develop into legal risk.
For organisations holding a sponsor licence, right to work processes should also be aligned with sponsor compliance systems and reporting duties. A coordinated approach strengthens governance and reduces exposure during Home Office audits.
A right to work framework that is consistent, documented and regularly reviewed provides the strongest protection against both civil penalties and discrimination claims.
Section F: Need Assistance?
Discrimination risks in right to work checks often emerge only after a complaint, grievance or audit. By that stage, the focus shifts from prevention to defence.
DavidsonMorris advises UK employers on right to work compliance, discrimination risk management and sponsor licence governance. If you require support reviewing your right to work framework or responding to a discrimination allegation, contact us for advice tailored to your organisation.
Section G: Discrimination & Right to Work Checks FAQs
Can right to work checks be discriminatory?
Yes. While employers are legally required to conduct right to work checks, those checks can become discriminatory if they are applied selectively or based on assumptions about race, nationality or ethnic origin. Consistency across all candidates and workers is central to compliance.
Is it race discrimination to ask only foreign nationals for documents?
Yes. Selecting individuals for document checks based on perceived nationality or ethnicity creates a clear risk of direct race discrimination under the Equality Act 2010. All prospective employees should be checked in the same way and at the same stage of recruitment.
Can I reject a candidate because they require sponsorship?
An employer can decide not to sponsor a role, but rejecting a candidate solely because they are not British or because of their nationality can amount to unlawful discrimination. Decisions should be based on whether the individual has the right to undertake the role and whether sponsorship is genuinely available for that position.
Do I need to recheck British citizens?
Where a British citizen presents a valid British passport or other acceptable List A document, no follow-up check is required. However, the initial right to work check should still be conducted in the prescribed manner to establish a statutory excuse.
Can workers with time-limited visas be treated differently?
No. Once a worker has established a lawful right to work, they should not be treated less favourably because their permission is time-limited. Follow-up checks may be required for immigration compliance, but employment terms and opportunities should not be influenced by immigration status alone.
Does following the Home Office Code of Practice protect against claims?
Compliance with the Code of Practice supports an employer’s position and can be taken into account by a Tribunal. However, it does not override obligations under the Equality Act 2010. Employers need to ensure both immigration and equality duties are satisfied in practice.
Section H: Glossary
| Term | Meaning in this context |
|---|---|
| Right to work check | The prescribed process an employer follows to verify that an individual has lawful permission to work in the UK, in order to establish a statutory excuse against a civil penalty. |
| Statutory excuse | The legal protection available to an employer who has carried out right to work checks correctly, shielding them from liability for a civil penalty if a worker is later found to be working illegally. |
| Direct discrimination | Less favourable treatment because of a protected characteristic, such as race or nationality, which in most cases cannot be justified. |
| Indirect discrimination | A policy or practice that applies to everyone but disproportionately disadvantages people sharing a protected characteristic, unless it can be objectively justified. |
| Protected characteristic | A characteristic protected under the Equality Act 2010, including race, age, disability, religion or belief, sex and sexual orientation. |
| Follow-up check | A repeat right to work check required where a worker has time-limited permission to work in the UK, carried out before that permission expires. |
| Employer Checking Service | A Home Office service that enables employers to verify a worker’s right to work where acceptable documents cannot be produced. |
| Positive Verification Notice | Confirmation issued by the Home Office that a worker has a continuing right to work, typically valid for six months, providing a temporary statutory excuse. |
Section I: Useful Links
| Resource | Description |
|---|---|
| Home Office Code of Practice: Avoiding Unlawful Discrimination | Official guidance for employers on avoiding discrimination while preventing illegal working. |
| Employer’s Guide to Right to Work Checks | Home Office guidance on conducting right to work checks and establishing a statutory excuse. |
| Equality Act 2010 Guidance | Government guidance on the application of discrimination law in employment. |
| ACAS: Equality and Discrimination | Practical guidance on avoiding discrimination in the workplace. |
| Right to Work Checks Guide | Employer-focused guidance on conducting compliant right to work checks. |
| Preventing Illegal Working | Overview of employer obligations and civil penalty exposure under the illegal working regime. |
