By Rachel Sutton, Partner
Smart glasses are no longer a futuristic workplace issue. They can be purchased on-line or until recently at K-mart! What is worse is that you cannot tell if they are activated and sometimes even the user is unaware, they are active whilst not being worn.
Camera- and microphone-enabled eyewear can now look like ordinary glasses, record discreetly, connect to personal devices and cloud services, and capture conversations, documents, screens, customers, clients, visitors and colleagues. For employers, the question is not simply whether smart glasses are useful or intrusive. It is whether a lawful, reasonable and proportionate workplace rule should prohibit, restrict or regulate their wearing and use at work, including at work-related events and functions.
In many workplaces, a blanket prohibition on wearing smart glasses at all times may be difficult to justify, particularly if the device is required because of a disability, used as an approved accessibility aid, or has a legitimate work health and safety or operational purpose.
Employers are likely to be on firmer ground if they prohibit or tightly control the use of recording, livestreaming, transcription, facial recognition, artificial intelligence and data-capture functions, especially in areas where confidential information, personal information, safety-sensitive work, client information or private conversations are involved. This includes working from home or remote locations.
A better starting point is usually a risk-based policy: smart glasses may be worn only where approved, must not be used to record or transmit information without express permission, must be removed or disabled in designated areas, and must not be used at work-related events, functions or remotely (when using the employers IT systems, computer activity such as on-line video calls) in a way that breaches privacy, confidentiality, bullying, harassment, discrimination, safety or social media obligations.
There is no single piece of legislation that deals specifically with smart glasses in the workplace. The legal analysis instead draws on a patchwork of privacy, surveillance, employment, work health and safety, discrimination and confidentiality obligations. The Office of the Australian Information Commissioner has recently identified surveillance wearables as an area requiring close attention, noting that smart glasses can enable images, video and sound to be recorded in circumstances where others may not realise they are being recorded.
Privacy Act obligations may be relevant where an employer collects, stores or uses recordings or other personal information captured by smart glasses. State and territory surveillance and listening devices legislation may also apply, particularly where the device records conversations, images, computer activity or location data.
In New South Wales, for example, workplace surveillance legislation imposes notice requirements for certain forms of employee surveillance, while other jurisdictions regulate surveillance devices through different statutory schemes. Employer’ with a national footprint should therefore avoid assuming that one simple rule will operate identically across Australia.
Work health and safety laws require employers and other duty holders to identify and manage risks to health and safety so far as is reasonably practicable.
Smart glasses may create physical risks, such as distraction, impaired vision, incompatibility with personal protective equipment, or unsafe use in vehicles, warehouses, laboratories, clinical environments, construction sites or other safety-sensitive settings. They may also create psychosocial risks if workers feel they are being monitored, recorded or assessed without transparency.
A WHS-based restriction should be grounded in a risk assessment and worker consultation. Depending on the workplace, reasonable controls may include prohibiting smart glasses in safety-critical areas, requiring devices to be removed while operating plant or driving, banning recording in emergency response settings, ensuring compatibility with PPE, and training workers on permitted and prohibited uses. If an employer permits smart glasses for operational purposes, it should also consider whether the technology itself introduces new hazards that require control.
An absolute prohibition on wearing smart glasses may create discrimination risk if the device is used as an assistive technology, medical aid or reasonable adjustment for a worker with disability. Anti-discrimination laws generally require employers to consider reasonable adjustments unless doing so would impose unjustifiable hardship or create an unmanaged safety risk. Employers should therefore distinguish between wearing a device and activating particular functions, such as recording, livestreaming or facial recognition.
A defensible policy should include an exception process for disability, accessibility, medical, cultural or role-specific reasons. The process should allow the employer to assess the proposed use, consult with the worker, consider alternatives, and impose reasonable safeguards such as disabling recording functions, limiting use to particular tasks, or using employer-approved devices with privacy controls.
Employers may direct employees provided the directions are lawful and reasonable about workplace conduct, confidentiality, technology use, safety and attendance at work-related events. A direction not to use smart glasses to record colleagues, clients, customers or confidential material will often be easier to justify than a direction that prevents a worker from wearing any smart eyewear in all circumstances.
If an employee breaches a smart glasses policy, disciplinary action should be assessed in the ordinary way: was the rule clear, lawful and reasonable; was the employee notified and trained; did the conduct involve deliberate recording, confidentiality breach, harassment, safety risk or reputational harm; and was procedural fairness afforded? Employers should also be careful not to rely on data or recordings obtained unlawfully, unfairly or inconsistently with their own policies.
As we come into the festive season of the year and generally, work-related events and functions deserve specific attention. They often involve informal conversations, alcohol, photography, clients, colleagues and third parties. A smart glasses rule should make clear that workplace behavioural standards continue to apply at employer-sponsored or work-connected events, including conferences, offsites, client functions, training sessions, networking events, celebrations and travel associated with work.
Employers may wish to prohibit recording-capable smart glasses at events unless prior approval is obtained. At a minimum, policies should prohibit recording people without consent, recording confidential business discussions, livestreaming, capturing images in bathrooms, change rooms or private spaces, and publishing event footage to social media without permission. These rules should apply to employees, contractors and, where practicable, attendees and visitors.
Rather than simply prohibiting smart glasses outright, employers should consider adopting a clear, proportionate and enforceable policy that:
Employers should not treat smart glasses as a novelty or as merely another personal device. Their capacity to record discreetly means they raise real privacy, confidentiality, safety, discrimination and employment law issues. A blanket ban may be appropriate in some high-risk settings or for particular functions, but a more defensible approach in most workplaces will be a targeted prohibition on unauthorised use, supported by clear policy wording, consultation, notices, training, exceptions for legitimate needs, and consistent enforcement.
If you would like further information or have any queries regarding other matters, please do not hesitate to contact:
