Right to Work Checks for Agency Workers
Who is responsible for right to work checks for agency workers? Understand the responsibilities of agencies and hirers.
Last updated: 30 January 2025
Agency workers require clear understanding of who is responsible for right to work checks.
Who Is Responsible?
General Rule
| Party | Responsibility |
|---|---|
| Employment agency | Primary duty |
| Conducts checks | Before supply |
| Establishes excuse | For themselves |
Hirer Position
| Hirer | Generally |
|---|---|
| Not responsible | If using agency |
| Unless | Direct contract |
| May choose | To check anyway |
Employment Agency Duties
What Agencies Must Do
| Duty | Detail |
|---|---|
| Check before supply | Every worker |
| Correct process | Same as employers |
| Keep records | Evidence |
| Follow-up | When required |
Establishing Excuse
| Process | Same As |
|---|---|
| Document check | Direct employment |
| Online verification | Where required |
| Record keeping | Standard requirements |
Types of Supply Arrangements
Through Agency
| Arrangement | RTW Duty On |
|---|---|
| Agency employs worker | Agency |
| Agency pays worker | Agency |
| Agency supplies to hirer | Agency checks |
Direct Engagement
| Arrangement | RTW Duty On |
|---|---|
| Hirer contracts directly | Hirer |
| Hirer pays worker | Hirer |
| Agency just introduces | May share duty |
Umbrella Companies
| Structure | Duty On |
|---|---|
| Umbrella employs | Umbrella |
| Agency supplies | May be shared |
| Complex | Seek clarity |
Hirer Considerations
Why Hirers May Check
| Reason | Detail |
|---|---|
| Due diligence | Extra protection |
| Site security | Access control |
| Client requirements | May be required |
| Belt and braces | Additional safeguard |
Hirer Best Practices
| Practice | Purpose |
|---|---|
| Written confirmation | From agency |
| Agency vetting | Choose reputable |
| Spot checks | Occasionally |
| Audit rights | In contract |
Agency Contracts
What to Include
| Clause | Purpose |
|---|---|
| RTW warranty | Agency confirms checks |
| Indemnity | If agency at fault |
| Audit rights | Verify compliance |
| Notification | If issues arise |
Sample Requirements
| Require Agency To | Evidence |
|---|---|
| Confirm checks done | Written statement |
| Keep records | Available on request |
| Notify problems | Immediately |
| Indemnify | If failure |
When Hirer Is Responsible
Direct Contract
| If Hirer | Duty Shifts |
|---|---|
| Contracts directly | To hirer |
| With worker | Hirer checks |
| Pays worker | Hirer responsible |
Agency Not Employer
| If Agency | Position |
|---|---|
| Just introduces | Not employing |
| No ongoing role | Hirer may be employer |
| Check structure | Carefully |
Knowledge Situations
| If Hirer | Risk |
|---|---|
| Knows illegal | Potential liability |
| Should know | Risk increases |
| Ignores signs | May be liable |
Penalties
Agency Liability
| If Agency Fails | Consequence |
|---|---|
| Civil penalty | To agency |
| Up to £60,000 | Per worker |
| Their excuse | Or lack of |
Hirer Liability
| Hirer Position | Generally |
|---|---|
| Not directly liable | If agency supplies |
| Unless | Direct contract |
| Or knowledge | Of illegality |
Both May Be Liable
| Situation | Risk |
|---|---|
| Complex structures | Both parties |
| Direct engagement | Hirer responsible |
| Deliberate avoidance | Both may face |
Common Scenarios
Scenario 1: Standard Agency Supply
| Situation | Position |
|---|---|
| Agency supplies temp | To hirer |
| Agency employs | Worker |
| Agency pays | Worker |
| Duty on | Agency |
Scenario 2: Introduction Only
| Situation | Position |
|---|---|
| Agency introduces | Candidate |
| Hirer contracts | Directly |
| Hirer pays | Worker |
| Duty on | Hirer |
Scenario 3: Long-Term Supply
| Situation | Consideration |
|---|---|
| Same worker | For months |
| Via agency | Still agency duty |
| But follow-up | Agency must do |
| Hirer may | Want confirmation |
Due Diligence
Selecting Agencies
| Factor | Check |
|---|---|
| Reputation | Established? |
| Compliance | Policies in place? |
| Certifications | Industry standards? |
| References | From other hirers? |
Ongoing Monitoring
| Action | Purpose |
|---|---|
| Regular confirmation | Checks being done |
| Audit requests | Verify records |
| Problem reporting | Know immediately |
Record Keeping
For Agencies
| Keep | Duration |
|---|---|
| RTW evidence | Worker tenure + 2 years |
| All workers | Supplied |
| Follow-up records | When done |
For Hirers
| Keep | Purpose |
|---|---|
| Agency confirmation | Due diligence |
| Contract terms | Responsibilities clear |
| Any queries | And responses |
Problems and Disputes
If Worker Found Illegal
| Step | Action |
|---|---|
| Establish facts | Who employed? |
| Check records | Agency or hirer? |
| Determine duty | Who should have checked? |
| Seek advice | If unclear |
Agency vs Hirer Disputes
| If Dispute | Resolution |
|---|---|
| Check contract | What agreed? |
| Structure | Who employed? |
| Legal advice | May be needed |
Special Situations
Umbrella Companies
| Structure | Duty |
|---|---|
| Umbrella employs | Umbrella checks |
| Complex chain | Clarify responsibility |
| Get confirmation | In writing |
Self-Employed Contractors
| If Genuinely | Position |
|---|---|
| Self-employed | Different rules |
| Not worker | May not need check |
| But often | Actually worker |
| Careful assessment | Required |
Summary
Key Points
| Element | Detail |
|---|---|
| Agency employs | Agency checks |
| Direct contract | Hirer checks |
| Get confirmation | From agencies |
| Due diligence | Important |
For Hirers
| Action | Purpose |
|---|---|
| Contract terms | Clear responsibility |
| Agency vetting | Choose well |
| Confirmation | Of checks |
| Audit rights | Verify |
For Agencies
| Duty | Requirement |
|---|---|
| Check all workers | Before supply |
| Same process | As employers |
| Keep records | Evidence |
| Follow-up | When required |
Related answers
Preventing Illegal Working: Employer's Guide
Civil penalties for illegal working. How to establish a statutory excuse, avoid fines, and handle Home Office enforcement visits.
Right to Work Checks: UK Employer Guide
UK employers must verify every employee's right to work before they start. Learn the 3 methods, required documents, and penalties for non-compliance.
Statutory Excuse for Right to Work
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Frequently Asked Questions
- Who does the right to work check for agency workers?
- The employment agency is responsible for conducting right to work checks for workers they supply. However, if the hirer contracts directly with the worker (not through the agency), the hirer becomes responsible.
- Should hirers do their own right to work checks on agency staff?
- While the agency has legal responsibility, hirers may choose to do their own checks as an additional safeguard. Some hirers require confirmation from agencies that checks have been done as part of their due diligence.
- What if an agency worker turns out to be illegal?
- If the agency conducted proper checks, they should have a statutory excuse and won't face penalties. The hirer generally isn't liable if they used a legitimate agency. However, if the hirer knew or should have known, they could face liability.