Right to work checks: employment status is no longer the dividing line

Adrian Fryer

From 1 October 2026, in a significant change to the illegal working regime, the obligation to establish a right to work is no longer confined to conventional employment relationships.

For senior HR teams, that creates an important distinction: being within scope of the right to work regime does not necessarily tell us anything about an individual’s employment status for other purposes.

A wider concept of work

Historically, right to work compliance has largely focused on employees. The new regime deliberately extends further, potentially capturing workers, casual staff and individual contractors providing work or services personally.

The key question is therefore no longer simply whether the individual is employed under a contract of employment.

Equally, however, the legislation does not bring every commercial relationship within scope. Genuinely independent businesses providing services to customers will generally remain outside the regime. Home Office guidance gives examples including an independent plumber providing services to members of the public and a graphic designer contracting through their own personal service company.

This means that contractual labels cannot provide the answer on their own. Businesses will need to consider the substance of the particular arrangement and whether it falls within the statutory scheme.

Why does this matter for HR?

The changes mean that organisations should resist simply importing familiar employment status tests into their right to work analysis.

The categories overlap, but they serve different statutory purposes. Someone may require a right to work check without acquiring employee or worker status for the purposes of rights such as unfair dismissal, holiday pay or the National Minimum Wage.

Contact Adrian Fryer, Senior Partner and Head of Employment.