On 1 October 2026, the Home Office issued the finalised Employer's guide to right to work checks, replacing the 11 September 2026 draft. In this article we summarise the key changes, including new text on TUPE transfers and a Q&A for stakeholders on the expanded right to work scheme.
The finalised version of the guidance contains new information indicating that the Home Office is continuing to engage with stakeholders on queries relating to the expanded right to work scheme, and signposts that further clarifications may follow in the short to medium term.
New text confirming TUPE doesn't apply to non-employee workers
The guidance now states that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE regulations) don't apply to individuals engaged as workers under a contract for services, i.e. they only apply to direct employees.
This means that if, on or after 1 October 2026, a new arrangement is entered into to engage non-employee workers following a change in the employer for whom they work (as defined under illegal working legislation), the new employer must conduct a right to work check before the arrangement commences to obtain a statutory excuse. The 60-calendar-day grace period that applies to TUPE transfers will not apply.
Although it is not explicitly stated in the updated text, we would interpret the requirement to carry out a fresh right to work check for 'individuals engaged under a contract for services as workers' as covering workers engaged under a worker's contract or as individual sub-contractors.
New Q&A section on changes to the right to work scheme from 1 October 2026
A new Annex C has been inserted at the end of the guidance. Points of note are included under the following themes:
General scope
- Organisations should refer to the criteria within the right to work scheme to determine whether a right to work check is required, rather than relying on an IR35 tax determination or the employment law definition of 'worker'. Using a personal service company (PSC) doesn't, in itself, determine whether an arrangement is in or out of scope, so organisations shouldn't assume either way solely because a PSC is used.
- The provision of workers or personnel isn't determinative of whether a contract is in scope – an assessment must be made of the legislative provisions, the contractual arrangements and how they work in practice.
- Where a contract exists between two corporate entities, no direct right to work check responsibility may arise, but extended liability provisions may apply in certain circumstances.
- Employment businesses are responsible for carrying out direct right to work checks on their employees, and the expanded right to work scheme isn't intended to require routine duplication of checks by the hirer.
- The new measures aren't meant to be retrospective, so an arrangement entered into before 1 October 2026 isn't brought within scope of the expanded right to work scheme solely because the work continues after that date (although organisations should consider whether a change to a previous contract is a continuation or constitutes a new contractual arrangement).
- If a worker carries out intermittent assignments, a fresh right to work check isn't required before each new assignment, only before the expiry of any limited statutory excuse.
Identity verification, imposter checks and using digital verification services
- If an imposter check is done in the prescribed manner by a Right to Work Digital Verification Service Provider (RtW DVSP), the employer doesn't need to duplicate this or annotate/confirm due diligence – however, the employer should check which services its chosen provider is certified to perform.
- A RtW DVSP can provide its services indirectly through a screening or onboarding provider; however, the relevant RtW DVSP must be clearly identified in the required output.
Governance, validation and organisational responsibility
- The Home Office won't provide legal or HR advice on individual or business-specific cases or approve an organisation's interpretation, contractual clauses and/or compliance approach.
Enforcement
- From 1 October 2026, there's no general grace period for compliance with the new measures, although enforcement will remain intelligence-led and case‑specific.
Extended liability
- An upstream party may rely on the identity verification systems and processes operated by another party in the contractual chain, provided it takes reasonable and proportionate steps to be satisfied that the relevant requirements are being met and that the systems operate effectively in practice.
- The Home Office doesn't expect to issue a civil penalty notice to more than one employer in a contractual chain in respect of the same illegal worker – liability will normally lie with the direct employer but if this can't be identified, another organisation in the chain may be pursued where the prescribed requirements haven't been met.
Written statements, contractual terms, evidence and assurance
- Contractual terms and conditions don't need to follow a prescribed form of wording but must incorporate the prescribed requirements – equivalent wording contained elsewhere in existing contractual documentation will, however, be deemed insufficient.
- Organisations can't rely on a warranty or contractual provision alone – there must also be systems, processes and controls that operate effectively in practice.
- There isn't a one-size-fits-all approach to auditing agencies and labour providers – the appropriate frequency and extent of due diligence/assurance, and the evidence needed to demonstrate this, will depend on factors such as the risk of illegal working and the nature, size and complexity of the contractual arrangements.
Substitution
- A contract that is silent on substitution won't be deemed one that permits substitution – the contractual arrangements must be examined to determine whether an explicit or implied right of substitution exists.
- There's no definitive list of evidence that must be retained to demonstrate substitution controls.
New link to sign up for right to work policy updates
New text under the heading 'Notification of updates to the Right to Work Scheme' confirms that employers can sign up on GOV.UK to receive updates on policy changes.
Signing up may be useful for the time being, as the Employer's guide to right to work checks has been updated several times in quick succession and further updates are anticipated as the expanded right to work scheme beds in.
Need help with the expanded right to work scheme?
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