The claimant brought proceedings against his former employer, the first respondent, for race discrimination and harassment. He also brought claims against the second respondent, a company which owned all the shares in the first respondent, on the basis that it was an agent of first respondent for the purpose of section 109 of the Equality Act 2010, it knowingly helped the discrimination for the purpose of section 112 and/or it was liable under section 111 for inducing acts of discrimination. He later brought a claim against the fourth respondent, the chairman of the second respondent, contending he knowingly helped what was alleged to be a discriminatory dismissal. At a preliminary hearing the EJ ordered the claimant to pay deposits in respect of his claims against the second and fourth respondents. The claimant appealed.

The EAT allowed the appeal in part. The test for ordering a deposit order was lower than that for a strike out but there still must be a proper basis for doubting the likelihood of a party being able to establish facts essential to the claim (Hemdan v Ishmail [2007] IRLR 228 applied). The EJ erred in ordering a deposit in relation to the claim that the fourth respondent knowingly helped discrimination within the meaning of section 112 on the basis that (i) the claimant was only employed for a short period and (ii) the dismissal was alleged to be for “poor performance/discriminatory”. Neither reason was relevant to the claim having little reasonable prospect of success. The EJ also erred in making a deposit order in respect of the other allegations against the second respondent because the claimant advanced facts, some of which were supported by documents, which went beyond “mere assertions” to support his claims based on agency under section 109 and section 112 EqA. In addition, the fact that the claimant was employed by the first respondent, which the EJ took into account, was not relevant to whether those claims against the second respondent stood little reasonable prospect of success.