For a reminder on the Right to Work extension scheme guidance that comes into force on 1 October 2026, please refer to the guidance on NHS Employers via the link below and to the further guidance and resources within.
https://www.nhsemployers.org/articles/right-work-extension-scheme-guidance
In summary this confirms that where temporary workers are supplied through an agency, and where the agency is the legal employer, as they hold the direct contractual relationship with the temporary worker, the primary statutory obligation—and the duty to obtain a statutory excuse—remains directly with the agency.
We would advise customers that the guidance states “Employers must ensure that any agencies or other external staffing and service providers they contract with have robust appointment processes which meet with the same high standards as those required if appointed directly by the organisation, including the undertaking of right to work checks”.
The legal employer holds the responsibility and must have effective right to work practices in place so that they can provide evidence of their general compliance to prevent illegal working. This includes: Having robust checking systems in place, consistent right to work checking processes, retention of records, and a history of compliance with the requirements.
We would suggest the following key operational expectations for customers receiving agency staff:
- Obtain written confirmation: You must obtain and retain formal, written confirmation from the agency stating that they have completed the required right to work checks in accordance with Home Office guidelines (the use of a framework assignment checklist would provide this).
- Keep audit records: Retain the agency’s confirmation of compliance on your files (ideally linked to the candidate’s placement record) for your own internal and framework audit purposes.
- Identity verification at the workplace: While the agency verifies the legal right to work, the 2026 draft guidance places significant emphasis on on-site identity verification. When the worker arrives, the customer must conduct a physical identity check (e.g., matching the person to their ID/passport photo or the profile provided by the agency). This ensures the person who showed up is the exact same individual who was verified.
However, please note that under a Direct Engagement model, the customer holds the direct contractual relationship with the worker. Therefore, the customer retains the primary statutory obligation and responsibility for the right to work check, to secure the statutory excuse, and retain the evidence.