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Our legal experts Finola McCarthy and Alice Crowley trawl through the minefield of employment law to answer your questions
Q. During discussions with a potential client while pitching for a project, I divulged a number of ideas for the construction and design, a lot of which I considered to be quite original. The client really liked my ideas but would not pay any reasonable fee, so we never agreed on a contract. Now the project is going ahead with a different project architect. Can I make sure the client doesn’t use my ideas?
A. You own the copyright in any plans and design prepared by you for the client, however ideas presented in conversation (ie orally) are not protected. Presuming that you have prepared some drawings of your ideas, you should remind the potential client by letter that you own the plans and designs that you gave him and that he is not entitled to reproduce any of your plans and designs without your consent. If steps are taken by the client to reproduce the designs, you may be entitled to seek an injunction against the client to prevent breach of copyright or claim damages. (Finola McCarthy)
Q. My firm has been approached to take over a project from another architect. What legal considerations do we need to take account of?
A. The issues will depend on the stage of the project. It will be important to check if the architect has been paid for his work as otherwise there may be no licence to use that architect's design and drawings. You should be careful to clarify the terms of your appointment – are you taking full responsibility for the design as if you had prepared it originally or are you only required to periodically inspect construction of the works already underway?
Are you required to take over as lead consultant and therefore are the other members of the design team to be sub-consultants to you? It is advisable to check that you are satisfied that the design is adequate – you will be expected to certify that the works are built in accordance with the planning permission and that the design is in accordance with Building Regulations. If you become aware of any inadequacy in the design, it is advisable to warn the client of this as otherwise you may be found negligent for not having done so if there is a problem later. (Finola McCarthy)
Q. I own a small architect’s practice which I took over from my father. We still employ a draughtsman who has been here since my dad was in charge. He is not really up to the job and I think it is in the firm’s interest to get rid of him. I cannot find any employment contract for him – I don’t think there ever was one – so can I just give him notice?
A. Even though there is no written contract of employment, a verbal contract was created when this employee commenced his employment and there are a number of clauses which are implied into the contract. The employee comes within the protection of the Unfair Dismissals Acts and you could face a legal action if you seek to terminate the employee's employment by just giving him notice. If you are unhappy with the employee's performance, you need to address this directly with the employee informally at first and if there is no improvement, through a formal disciplinary procedure.
Basically, this will entail inviting the employee to a disciplinary hearing(s) and putting the performance issues to them and giving them an opportunity to improve. You will need to ensure that you afford the employee the rules of natural justice and fair procedures during all stages of the process. Legal advice should be sought at an early stage if you do wish to dismiss the employee in order to limit your legal liability in the event that the employee decided to take a claim against you. (Alice Crowley)
Q. I have recently set up in practice and I am about to do my first project for a developer client as opposed to an owner-occupier. What are my responsibilities to the subsequent purchaser of the property?
A. You will owe a duty of care to the subsequent purchaser to use reasonable skill and care in the carrying out of your duties as architect. If you are negligent and cause a loss to the end user of the property, that person may be entitled to recover damages from you. The extent of your liability for damages will depend on whether or not you have provided a collateral warranty to the end user.
The collateral warranty will set out the basis on which a claim for damages can be brought. Some types of loss might not be recoverable unless there is a breach of a collateral warranty eg if the building is not defective but simply of a poorer quality than expected. If you are required to provide an opinion on compliance with planning permission and with building regulations, those opinions can also be relied on by the subsequent owner of the building. (Finola McCarthy)
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