Updated Discrimination Rules for New Hires

When it comes to new hires, UK employers often feel caught between the risk of civil penalties for illegal working and the risk of discrimination claims on the grounds of race, nationality, or ethnic origin. Unfortunately, complying with immigration law does not in itself protect employers from such claims, and citing fear of discrimination does not justify skipping a prescribed right to work check. Both risks need to be carefully considered.

Helpfully, the Home Office has recently published a draft code of practice that provides updated guidance on avoiding discrimination whilst conducting prescribed checks. If adopted, the code will apply to all new employment from 1 October 2026, replacing the current version of the code in force since 2022.

The updated version reiterates the existing principle that all prospective employees should be treated equally, regardless of their nationality, race, or ethnic origin. In essence, employers should not make assumptions about someone’s right to work in the UK based on their appearance, accent, or perceived background. They should certainly not request additional or different documents from certain individuals, or selectively conduct these checks. Doing so may expose employers to claims in the employment tribunal for discrimination claims under the Equality Act 2010. As a reminder, compensation for discrimination in the employment tribunal is uncapped. The upshot is that the checks should be conducted on all prospective employees.

So far, so familiar. However, the draft code introduces some key changes that employers should be aware of:

• It formally defines a ‘worker’ to include not only employees but also individuals engaged through worker contracts, as individual subcontractors or via online matching platforms.

• It is made clear that candidates with time-limited permission to work, including those evidenced with an eVisa, must not be treated less favourably.

• The importance of a having a documented equality policy and regular staff training is made clear. Those responsible for right to work checks should understand both the legal requirements and the potential discrimination risks.

In April, obligations for Sponsor Licence holders were expanded. Failure to demonstrate robust processes for conducting right-to-work checks across all relevant worker categories will amount to a standalone breach of sponsor duties, distinct from and in addition to any potential civil penalty liability. This draft code is a timely reminder that right to work checks must be handled carefully and consistently and employers who have fair and transparent recruitment processes will be best placed to avoid both immigration penalties and discrimination claims.

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