Right to Work: Do You Actually Know Who Is Working for You?

Imagine a construction company requesting three additional labourers from an agency. The agency confirms that the workers have been vetted and will arrive on Monday morning, and the site manager receives their names before introducing them to the team and sending them to work. But how does the site manager know that the three people who arrived are the same individuals whose identities and right to work were checked? What happens if one worker cannot attend and somebody else arrives in their place, and who is responsible if that replacement has no legal permission to work in the United Kingdom?

These are questions businesses should be asking following the changes to the Right to Work Scheme which took effect on 1 October 2026. Under section 48 of the Border Security, Asylum and Immigration Act 2025, the prohibition on illegal working has been extended to certain arrangements beyond conventional employment contracts, including specified worker and individual subcontractor arrangements. The legislation also introduces wider potential liability in certain contractual arrangements involving the supply of labour. For organisations using agency staff, subcontractors and frequently changing workforces, the consequences of inadequate checks could be substantial.

The agency said they checked. Is that enough?

Many employers use recruitment agencies because they need people quickly, particularly in industries where staffing requirements fluctuate from one week to the next. There is nothing inherently wrong with that arrangement, and agencies play a valuable role in supplying labour at short notice. Problems arise, however, when a business assumes that appointing an agency automatically transfers every compliance responsibility to that agency. That is not necessarily the case, and the revised scheme requires organisations to examine the contractual arrangements through which individuals provide work or services. In certain circumstances, liability may extend beyond the organisation directly engaging the worker.

There are prescribed arrangements through which businesses may establish protection against civil penalties, including contractual safeguards and measures concerning identity verification and substitution. A general assurance that an agency has completed its checks is not necessarily equivalent to satisfying those requirements. Businesses therefore need to establish what checks their agencies undertake, how the results are communicated, whether the relevant contracts contain appropriate provisions and how they can be certain that the individual arriving for work is the person who was checked. If nobody within the organisation can answer those questions with reasonable confidence, there is a weakness in the process which needs addressing.

The construction site problem

Construction provides a particularly clear example of how these difficulties can arise. A principal contractor may have a central office responsible for recruitment and compliance, while individual projects are managed by site supervisors who have little involvement in employment administration. A single site could have electricians, plumbers, labourers, specialist subcontractors and agency workers coming and going throughout the week, some working on the project for months and others attending for a single day. The site manager may reasonably believe that the office or labour supplier has dealt with the relevant checks, but that assumption becomes problematic when the person who arrives is not the individual named on the approved workforce list.

Construction businesses should therefore consider introducing a straightforward arrival-verification procedure which enables site managers to establish, before somebody begins work, that the individual is authorised to attend, corresponds with the verified worker record and has satisfied the relevant onboarding requirements. Where substitutions are permitted, the procedure should address what happens when a replacement is sent and how the necessary checks will be completed before that person starts work. The revised Home Office guidance specifically addresses proportionate identity-verification arrangements and substitution controls. These are matters that need clear oversight, particularly where site managers are expected to make immediate decisions without direct access to the organisation's HR or compliance team.

It is also worth considering who has authority to refuse entry or prevent somebody from commencing work where their identity or eligibility cannot be established. A site manager who identifies a discrepancy should know whom to contact, what information must be obtained and whether the individual can be admitted while enquiries are made. Without an agreed procedure, these decisions may be taken inconsistently, leaving the business exposed to unnecessary operational and legal risk.

A right-to-work check is not simply photocopying a passport

Another common misunderstanding concerns what constitutes a compliant right-to-work check. An employee produces a passport, someone photocopies it, places it in a personnel file and ticks the onboarding checklist. The business considers the matter completed, despite the fact that collecting identification documents is not necessarily the same as carrying out a prescribed check. Depending on the individual's circumstances, employers may need to examine acceptable original documents, use the Home Office online checking service or obtain verification through an appropriately registered digital verification service provider. They must establish that the individual is permitted to undertake the work in question, verify their identity and retain the prescribed evidence.

This has become particularly relevant as increasing numbers of people demonstrate their immigration status through an eVisa and the Home Office online service rather than a physical visa document. Employers need to understand which checking method is appropriate, how the result should be recorded and whether further verification may be required. Simply holding a copy of a passport or visa does not guarantee protection against a civil penalty, especially where the prescribed checking process was never completed or the person actually undertaking the work is not the individual whose permission was verified.

It is equally important to recognise that immigration status is not necessarily permanent. An employee who was entitled to work when recruited may have time-limited permission which subsequently expires, meaning that a further prescribed check may be necessary. By contrast, where a compliant check establishes an unrestricted right to work and provides a continuous statutory excuse, routine immigration rechecks are not required. Businesses therefore need an appropriate system for monitoring relevant expiry dates, completing any necessary follow-up checks and auditing existing records to identify gaps. Such reviews must be carried out consistently and without discriminatory assumptions based on nationality, appearance, name or accent.

What if an existing employee no longer has the right to work?

This is a question employers should consider before finding themselves in the situation. Suppose an employee has worked for the business for six years and, during an internal review, management discovers that their immigration permission may have expired. The answer is not automatically to dismiss the employee or suspend them without pay. An expired document does not necessarily mean that the individual has lost permission to work, particularly where a qualifying immigration application may have extended their existing rights or verification through the Home Office Employer Checking Service is appropriate.

The employer must first establish the facts and determine whether the individual can lawfully continue working while further enquiries are undertaken. A temporary suspension may be appropriate in some circumstances, but the employment contract, statutory rights and individual circumstances must be considered carefully, particularly where unpaid suspension is contemplated. Where there is confirmed evidence that the individual is prohibited from undertaking the work, the employer must not simply allow unlawful working to continue. Any resulting employment decision nevertheless requires proper consideration of the relevant legal and procedural requirements, rather than assuming that an immigration concern automatically removes every other employment obligation.

Similar difficulties can arise with agency workers and subcontractors, although the contractual obligations and available responses may differ. Employers should therefore establish in advance who is responsible for investigating concerns, contacting labour suppliers, securing relevant documentation and making decisions about whether an individual can continue working. These procedures are particularly valuable where managers need to act quickly, because uncertainty about who has authority to make a decision can cause unnecessary delays and potentially compound an existing problem.

The potential financial consequences

The Home Office can impose civil penalties of up to £60,000 per illegal worker where the legal requirements for liability are met. For businesses operating with multiple sites and a substantial temporary workforce, that represents a potentially serious financial exposure, quite apart from the disruption an investigation may cause. A missing document does not automatically mean that such a penalty is payable, and liability will depend on the relevant circumstances, including whether the business can establish the applicable statutory protection. Nevertheless, an organisation which cannot demonstrate that the necessary checks and safeguards were undertaken may find itself in a difficult position.

The consequences can also extend beyond a civil penalty. An investigation may disrupt operations, damage commercial relationships and raise concerns about the organisation's wider compliance arrangements. In sufficiently serious circumstances, knowingly employing someone without the necessary permission, or having reasonable cause to believe they lack it, may also give rise to criminal liability. The financial risk is therefore only part of the problem, and employers should be treating compliance as an operational responsibility rather than merely another piece of recruitment paperwork.

What should employers be doing now?

The starting point should be a review of the existing workforce and the arrangements through which people are engaged. Employers should establish whether the appropriate checks have been undertaken, whether the required evidence has been retained and whether any time-limited permissions require follow-up. Where records are missing or incomplete, those gaps should be investigated and addressed promptly rather than ignored or concealed. Completing a check now does not retrospectively establish that a prescribed check was undertaken before employment began, but it can assist the business in establishing the individual's current position and identifying any further action required.

Agency and subcontractor arrangements should also be reviewed to determine where the extended rules may apply and whether existing contractual safeguards are sufficient. Businesses using temporary labour should consider how identities are verified when workers arrive, what happens when substitutions are made and whether site managers have adequate access to the information needed to make informed decisions. These procedures should be supported by appropriate data protection arrangements and clear lines of responsibility between the central office, individual managers and external labour providers.

Employees should also be informed where the business intends to review its existing records or undertake further checks, with the process explained clearly and applied consistently. The purpose is to establish compliance, not to create unnecessary obstacles for legitimate workers. Managers responsible for recruitment and site access should receive practical guidance on what constitutes an acceptable check, when further enquiries are required and how to deal with situations where an individual's identity or permission to work cannot immediately be confirmed. There is little value in an extensive compliance policy if the person admitting workers to a site has never been told it exists.

Prevention is easier than fighting the fire

The purpose of stronger right-to-work procedures is not to impose unnecessary administration on smaller businesses, but to prevent avoidable failures. An organisation which understands its responsibilities, maintains appropriate records and acts promptly when concerns arise is better placed to protect itself than one relying entirely on assumptions about what an agency, subcontractor or head office may have done. No system can eliminate every possibility of error, and having procedures on paper does not automatically establish a legal defence. The arrangements must satisfy the relevant statutory requirements and operate effectively in practice.

However, discovering a serious compliance failure during an Immigration Enforcement inspection is likely to be considerably more disruptive than reviewing those arrangements now. Employers should consider whether they genuinely know who is working for them, whether the appropriate checks have been completed and whether the people responsible for admitting workers understand what is expected of them.

It is easier to prevent a fire than to fight one. For employers who have not reviewed their right-to-work procedures since the October changes, now is the time to do so.

Aubrey International assists businesses with employment compliance, onboarding procedures, contractual arrangements and workforce risk management, including reviewing how responsibilities are allocated between agencies, contractors and the organisations engaging them. Businesses concerned about their existing arrangements are welcome to arrange an initial discussion.

This article provides general information concerning right-to-work compliance across the United Kingdom. Immigration status, contractual liability and employment decisions may require specialist advice based on the individual circumstances.