Right to Work Checks and Discrimination: What UK Employers Need to Know

Right to Work checks are a legal requirement for UK employers, but the way those checks are carried out also matters.

Employers need to establish that individuals are permitted to undertake the work being offered while ensuring that the process does not result in unlawful discrimination.

That balance has been reinforced by the Home Office's updated statutory code of practice on avoiding discrimination while preventing illegal working, which came into force on 1 October 2026.

The code reflects the increasing use of digital immigration status, eVisas and online Right to Work checks, while reinforcing a longstanding principle: employers should apply their checking processes consistently and should not make assumptions about somebody's eligibility to work based on nationality, appearance, accent or other protected characteristics.

For employers managing recruitment at scale, establishing a consistent Right to Work process can therefore be as important as carrying out the individual check correctly.

Why Can Right to Work Checks Create Discrimination Risk?

Right to Work checks inevitably involve information about nationality and, in some cases, immigration status.

That creates a risk if employers begin treating candidates differently based on assumptions rather than applying the prescribed checking process consistently.

For example, an employer should not carry out Right to Work checks only on applicants who appear to be from overseas while assuming that other candidates are British citizens.

The Home Office code specifically advises employers not to make assumptions about an individual's Right to Work or immigration status based on characteristics including:

• Colour.
• Nationality.
• Ethnic or national origins.
• Accent.
• Surname.
• Length of residence in the UK.

Instead, employers should have a consistent process for those being considered for work.

Right to Work Checks Should Be Applied Consistently

Consistency is one of the most important principles in the current guidance.

Where an employer carries out a Right to Work check on one applicant at a particular stage of recruitment, the Home Office code states that the employer should ensure that all applicants being considered at that stage are also checked.

This helps separate the Right to Work process from subjective assumptions about individual candidates.

A structured recruitment procedure might therefore establish:

• At what point a Right to Work check will be completed.
• Which candidates will be checked at that stage.
• Which prescribed checking route applies.
• How evidence will be recorded.
• How cases requiring further Home Office verification will be handled.
• When follow-up checks are required for time-limited permission.

The exact process may vary between employers, but it should be capable of being applied consistently.

Do Employers Need to Check British Citizens?

Yes.

British nationality should not simply be assumed from somebody's name, appearance, accent or employment history.

Employers should carry out the appropriate Right to Work process consistently, including for British citizens.

The method used may differ according to the individual's circumstances.

Current prescribed routes can include a manual document check, an appropriate digital Right to Work check or the Home Office online service, depending on the worker's nationality, immigration status and available evidence.

For a broader explanation of the different checking routes, our guide to Right to Work checks for UK employers explains how the current system operates.

Candidates With an eVisa Should Not Be Treated Less Favourably

The UK's immigration system has increasingly moved towards digital immigration records and eVisas.

The 2026 code makes clear that candidates should not be treated more or less favourably simply because they have an eVisa.

Similarly, a candidate with time-limited permission to work should not automatically be considered less suitable than somebody with permanent status.

Where the person has established that they are permitted to undertake the work in question, recruitment decisions should be based on their suitability for the position rather than assumptions about their immigration status.

A time-limited Right to Work may require an appropriate follow-up check at a later date.

That administrative requirement should be distinguished from the question of whether the person is capable of performing the role.

What If a Candidate Cannot Use the Normal Digital Process?

A candidate being unable to immediately provide the expected online evidence does not necessarily mean that they have no Right to Work.

There can be circumstances where somebody has:

• An outstanding immigration application.
• An administrative review.
• An appeal.
• A technical difficulty accessing their digital status.
• Another immigration position requiring confirmation directly from the Home Office.

In applicable circumstances, employers may need to use the Employer Checking Service.

Where the relevant requirements are satisfied, the Home Office can issue a Positive Verification Notice confirming the person's Right to Work for the relevant period.

The 2026 code specifically warns against treating individuals unfavourably because they cannot use a particular digital route where another prescribed process is available.

Can Employers Require Everyone to Use a Digital Check?

Not in every circumstance.

Digital checking is now an important part of the Right to Work system, but employers should not assume that every candidate can or must use the same digital route.

The appropriate method depends on the individual's documentation and immigration status.

The Home Office code states that employers should not discriminate based on the type of Right to Work check used. It also recognises that technical problems or individual circumstances can affect a person's ability to use a particular online process.

This is another reason why recruitment procedures should focus on whether the person can establish their Right to Work through an appropriate prescribed route rather than whether they can complete one preferred method.

What About Candidates With Time-Limited Right to Work?

Having time-limited permission does not mean that a candidate should automatically be rejected.

The Home Office code states that applicants should not be treated less favourably solely because acceptable documentation or an eVisa shows that their Right to Work is time-limited.

Where somebody has established their entitlement to work, the employer should manage any required follow-up checks in accordance with the applicable rules.

For organisations recruiting regularly, this makes accurate record keeping particularly important.

Employers need to distinguish between:

• Workers whose Right to Work is not time-limited.
• Workers whose permission requires a future follow-up check.
• Cases requiring Home Office verification.
• Cases where an existing application, review or appeal affects the checking process.

The administrative process should support compliance without turning immigration status into an inappropriate proxy for candidate suitability.

Right to Work Has Expanded Beyond Traditional Employees

The 2026 Right to Work framework also now applies more broadly than the traditional employer-employee relationship.

From 1 October 2026, the scheme was expanded to cover additional working arrangements, including certain worker contracts, individual subcontractors and individuals supplying services through online matching platforms.

Our article on the Right to Work Scheme expansion explains those changes in more detail.

For businesses using flexible or subcontracted labour, the broader scope makes consistent verification procedures increasingly important.

Where Does Right to Work Fit Within Pre-Employment Screening?

A Right to Work check has a specific statutory purpose.

It should therefore not be confused with general identity verification or wider background screening.

Identity verification seeks to establish that the person is who they claim to be.

A Right to Work check establishes whether that individual is permitted to undertake the relevant work in the UK using an appropriate prescribed process.

Other pre-employment checks might separately verify matters such as:

• Employment history.
• Qualifications.
• Professional credentials.
• References.
• Appropriate criminal-record information.
• Regulatory information.

Conflict International's ID Verification & Right to Work Checks can form part of a wider screening programme where employers require a structured process for candidate verification.

The employer remains responsible for ensuring that the appropriate prescribed Right to Work process is completed and for making the final recruitment decision.

Building a Consistent Right to Work Process

The 2026 Home Office code provides a useful reminder that Right to Work compliance involves more than identifying whether somebody has permission to work.

Employers also need to consider how their checking process operates across the workforce.

A well-structured approach should help ensure that:

• Candidates at the same recruitment stage are treated consistently.
• Assumptions are not made based on nationality or appearance.
• Different lawful methods of proving Right to Work are recognised.
• Candidates with eVisas are not treated less favourably.
• Time-limited permission is managed through appropriate follow-up checks.
• The Employer Checking Service is used where required.
• Recruitment decisions remain focused on suitability for the role.

The objective is not to reduce scrutiny.

It is to ensure that the required scrutiny is applied fairly, consistently and through the correct process.

As Right to Work verification becomes increasingly digital and applies across a wider range of working arrangements, organisations with regular or high-volume recruitment may benefit from reviewing whether their procedures remain consistent with current Home Office guidance.