The Home Office has launched a short consultation on proposed changes to its code of practice on how employers can avoid unlawful discrimination when conducting right to work checks.

As the consultation explains, all employers are under a legal duty to prevent illegal working, including by carrying out right to work checks to ensure that someone is not disqualified from working because of their employment status. Already, the Government has published detailed guidance on how employers can comply with their obligations to conduct such checks (see here).

The purpose of the revised code of practice is to ensure that, when conducting these checks, employers do not engage in unlawful discrimination. The consultation demonstrates how such discrimination might occur, for example by (i) not interviewing someone from a certain nationality or ethnic group on the assumption that they will not have the right to work in the UK, (ii) carrying out right to work checks for a foreign national worker but not their UK-born counterpart, or (iii) requiring a worker to have been resident for five years prior to starting employment.

The draft code of practice sets out a variety of ways in which employers can ensure that they do not discriminate, including the following:

• Do not only check the status of those who appear to the employer likely to be migrants;
• Do not make assumptions about an individual’s right to work in the UK or their immigration status on the basis of their colour, nationality, ethnic or national origins, accent, surname or the length of time they have been resident in the UK;
• Only ask questions about a job applicant’s or worker’s immigration status where it is necessary to determine whether their status imposes limitations on the number of hours they may work each week or the type of work they may carry out;
• Do not treat applicants more or less favourably on the basis that they have an eVisa.

Importantly, the draft code of practice also broadens the scope of those who are likely to fall within it by widening the definition of an employer to include whose who employ an individual:

1. Under a contract of employment;
2. Under a worker’s contract;
3. As an individual sub-contractor; or
4. As an online matching service providing the details of an individual who is a service provider to potential clients or customers.

The consultation closes on 29 April 2026, and can be found here.