Why selective right-to-work checks are discrimination, not caution

The right-to-work scheme and the Equality Act 2010 collide in any business that has not thought about both together, and the case law on where that collision lands is not ambiguous.

The legal position

The Home Office's own Code of Practice on Preventing Illegal Working is explicit: right-to-work checks must be applied to all prospective employees, not selectively to those who appear more likely to need one. An employer who checks only workers with a non-British name, an accent, or an appearance associated with a particular nationality is committing direct racial discrimination under the Equality Act 2010 — regardless of motive, and regardless of whether a check would ultimately have been required for that individual. Intending to manage immigration risk is not a defence to an Employment Tribunal claim.

The fix is procedural, not judgemental

The only approach that satisfies both the illegal working regime and the Equality Act simultaneously is uniform process: every offer of employment triggers the same right-to-work check, at the same point in the hiring sequence, for every candidate. The specific method of check will legitimately vary by nationality and document type, but the decision to check, and when, must not vary at all. Businesses that grew through informal hiring are typically the most exposed here, precisely because checks were added as an afterthought rather than built into onboarding from the start.

This is general awareness content, not legal advice, and does not cover the specific circumstances of any organisation or sector.