The Home Office has published a draft, updated Code of Practice on ‘Avoiding unlawful discrimination while preventing illegal working’ (the “Code”). This is the code of practice which provides practical guidance for employers in managing the separate obligations of carrying out right to work checks and not unlawfully discriminating individuals contrary to the Equality Act 2010, and which tribunals can take into account when assessing whether an employer has acted lawfully.
If accepted, it is expected to come into force on 1 October 2026, meaning that it will apply to all employment commencing on or after 1 October 2026 and any repeat checks on existing workers carried out on or after 1 October 2026.
The main change to the Code is that the definition of ‘employer’ extends to an organisation engaging a sub-contractor and individuals engaged through online matching services, and a ‘worker’ also covers such individuals. This is in line with section 48 of the Border Security, Asylum and Immigration Act 2025 which will extend the prevention of illegal working regime to organisations hiring individuals in the gig economy or on zero hour contracts.
The Code also recognises that technical issues may arise which are beyond an individual’s control (e.g. broken share code systems), meaning that they aren’t able to demonstrate a right to work using the Home Office online service. It confirms that such individuals must not be discriminated against or treated less fairly.
Employers are encouraged to try and keep jobs open for as long as possible to enable an individual a reasonable opportunity to show they have the right to work, but the Code confirms that they are not obliged to if recruitment is needed urgently.
The Code also reminds employers to treat all applicants fairly at each stage of the recruitment process and when carrying out right to work checks.
It will be important for employers to consider their right to work check systems to ensure these will be compliant with the amendments to the regime.
The Code is open for consultation until 29 April 2026. A copy of it can be found here.
