Right to Work compliance is not limited to deciding whether a worker has permission to work. Employers also need to make sure the checking process does not unlawfully disadvantage applicants because of race, nationality, immigration status or the type of evidence they use.
The revised Home Office discrimination code will apply to employment starting on or after 1st October 2026. It will also apply where an existing worker needs a repeat check from that date to maintain the employer’s statutory excuse.
The code gives HR teams clearer instructions on eVisas, time-limited permission, manual documents and the Employer Checking Service.
Apply checks consistently
Employers should check all applicants being considered at the same recruitment stage, rather than selecting people for checks based on their name, accent, nationality or perceived immigration status.
The Home Office also says job decisions should be based on suitability for the role. Applicants should not be discouraged or excluded because of a known or perceived protected characteristic.
A consistent process does not require every candidate to use the same checking method. Different immigration statuses and nationalities are evidenced in different ways. Consistency comes from accepting and handling each prescribed route properly.
Do not favour applicants with permanent status
An applicant must not be treated less favourably solely because their documents or eVisa show a time-limited Right to Work.
Once that person has established their entitlement, the code says they should not be disadvantaged in their employment, training, promotion, transfer, benefits or access to services because their permission is time-limited. Prescribed follow-up checks may still be required.
Recruitment teams should be careful with phrases such as “permanent Right to Work required” unless indefinite permission is objectively necessary and legally justified for the role.
Do not make an eVisa the preferred hiring route
Employers must not treat someone more or less favourably because they hold an eVisa.
An eVisa holder will usually use the Home Office online service. Other people may provide physical documents, use a registered digital provider or require an ECS check. The code specifically warns against employing only people who can use an eVisa while refusing to handle manual or ECS routes.
Share-code problems also need a proper response. A person may be temporarily unable to generate a code, or the online service may return an incorrect result because of a technical issue. Those applicants should not automatically be rejected or moved behind candidates with easier checks.
Digital checks cannot always be compulsory
Employers may encourage candidates to use a digital provider or the Home Office online service. They can also offer access to suitable devices or internet connections.
They cannot require an online or digital check in every case. The exception is a worker who has been provided with an eVisa, because that status must be evidenced through the Home Office online service.
Where a British or Irish citizen does not wish to use a digital provider and can provide acceptable physical evidence, the employer should retain a lawful manual route.
Use the Employer Checking Service when required
The ECS is designed for circumstances where the person cannot evidence their status through the usual routes, including some outstanding applications, reviews and appeals.
Failing to use ECS where it is required can leave the employer without a statutory excuse. The discrimination code also warns that refusing to carry out an appropriate ECS check could amount to less favourable treatment.
The process should tell recruiters when to refer a case, who submits the request and what happens while the result is outstanding.
Give applicants a reasonable opportunity
The code says employers should try to keep a job open for long enough to give workers a reasonable opportunity to demonstrate their Right to Work. It recognises that employers are not obliged to keep a role open indefinitely where recruitment is urgent.
A documented approach is preferable to leaving the decision to individual recruiters. Relevant factors might include the proposed start date, the expected ECS response time and whether the applicant has supplied the information needed for the check.
Updates HR teams should make
Recruitment policies should explain all valid checking routes without presenting one as the default route for every candidate.
Job adverts, application forms and recruiter emails should also be reviewed. Passport-only language, requirements for permanent immigration status and automatic rejection following a share-code problem can all create avoidable risk.
Training should use real scenarios rather than repeating the list of acceptable documents. Recruiters need to know what to do when someone has an eVisa, presents manual evidence, needs ECS verification or has time-limited permission.
Our October 2026 webinar will cover the revised discrimination code and show how employers can build fair handling into each Right to Work route.
